An Examination Under Oath (“EUO”) is a formal process by an insurance company to obtain claim information. Virtually all insurance policies provide an insurance company with the option to investigate a claim by means of an EUO. An insurance company can request an EUO at any point throughout the claims process.
An EUO looks and feels much the same as a deposition and should be approached with the same preparation as if a claim has been denied by an insurance company. At the EUO, the witness will be required to give sworn testimony in response to questions asked by the lawyer for the insurance company. The examination is conducted in the presence of a court reporter, who records everything the witness says on a stenograph machine. After the testimony is transcribed, it is sent to the insurance company to be considered along with other investigative materials and the lawyer’s recommendations.
Insurance Company Requirements
Most insurance policies have a provision that both authorizes it to take an EUO and requires the witness to submit to the EUO. If the witness fails to appear for or fails to cooperate with the EUO, the insurance company may deny the claim for failure to comply with duties under the policy. An insurance company will take an EUO for a number of reasons, including:
- It suspects the witness has filed a fraudulent claim, exaggerated their loss, or provided false information.
- It seeks information to more thoroughly evaluate a claim.
- It wants to compare the witness’s testimony at the EUO to information provided to the insurance adjuster shortly after the loss to evaluate consistency in statements.
- It wants to commit the witness to a statement of facts, which could later be used in court as an impeachment tool.
- It wants to evaluate how the witness presents and, therefore, the impression a judge or jury is likely to have in court. It wants to know, for example, whether the witness appears to be honest and likeable, whether the witness answers questions directly, and whether the witness gets angry easily or whether they remain composed throughout the process.
- It is comparing testimony with information gathered from other sources, which could include credit reports, insurance industry records, public records, and information provided by witnesses.
Most EUO’s cover far more subjects than the circumstances of a personal injury claim because the insurance company is also trying to evaluate the witness’s character and whether they have a motive for pursuing a fraudulent claim. Some of the subjects that may be covered include employment history, all previous addresses, financial circumstances in terms of debts, assets, and payment history, personal relationships with friends and family, medical history, other insurance claims of various types, and whether an insured has been convicted of any crimes. Many of these subjects are complex and do not lend themselves to simple answers. Preparation and careful thought before the day of the EUO are exceedingly helpful in doing a good job in responding to inquiry.
EUO’s typically take a few hours, but can be longer or shorter. The length of the EUO depends on the type and complexity of the case, the personality, preparation and style of questioning of the lawyer for the insurance company, and on the witness’s ability to formulate responsive answers.
The best way a witness can prepare for an EUO is to anticipate the questions that may be asked and spend time organizing thoughts and gathering necessary information. If the witness waits until they are sitting in the EUO to consider answers, they have waited too long and may leave out crucial information or inadvertently provide inaccurate information to important questions.
Witnesses should understand that this is not an amicable process. The lawyer for the insurance company is not a friend. The insurance company does not hire a lawyer to interrogate their insured because they want to help substantiate a claim. Accordingly, it is important for witnesses to be accompanied by an attorney to assist in the following ways:
- An attorney will help familiarize the witness with how the EUO is taken, including certain rules that must be followed.
- An attorney will familiarize the witness with various techniques the lawyer for the insurance company may use.
- An attorney will help the witness practice providing testimony.
- An attorney will help the witness anticipate questions that may be asked and responses to those questions.
- An attorney will help the witness organize documents in advance.
Witnesses should hire an attorney who regularly represents insureds in disputes with their insurance company and who has attended a number of EUO’s with clients on a variety of different types of cases. As in any area of life, knowledge and experience are helpful and can be crucial.
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