36 Brief 52 (2006-2007)
An Examination under Oath - Not Just Another Deposition

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E~ xperienced lawyers who approach their first
examination under oath (EUO) as they
would a discovery deposition typically find
themselves in for a shock. The attorney
representing the insured may find himself
less than prepared to present his client for question-
ing. Similarly, the attorney representing the insurer
may find that she is uncertain of the scope and depth
of the insurer's right to examine its insured.
While property insurance policies differ some-
what amongst insurers, most policy forms provide
the insurer with a right to demand the EUO of its
insured and a right to demand records and docu-
ments in support of the presented claim. The stan-
dard policy provision respecting these rights
typically provides:
Your Duties after Loss
After a loss to which this insurance may apply, you
shall see that the following duties are performed:
As often as we reasonably require:
Provide us with records and documents we request
and permit us to make copies;
[and] submit to examinations under oath and sub-
scribe the same...
Simply, an EUO is a formal proceeding during
which an insured, while under oath and typically in
the presence of a court reporter, is questioned by a
representative of the insurer regarding the presented
claim. In 1884, the U.S. Supreme Court first articu-
lated the purpose of an EUO:

The object of the provision in the policies of
insurance, requiring the assured to submit himself
to an examination under oath ..-. was to enable
the company to possess itself of all knowledge, and
all information as to other sources and means of
knowledge, in regard to the facts, material to their
rights, to enable them to decide upon their obliga-
tions, and to protect them against false claims.'
Before conducting an EUO, reviewing the rele-
vant case law and the statutes in the specific jurisdic-
tion of inquiry are vitally important. As in most areas
of the law, rules unique to different jurisdictions often
govern specific procedural and substantive issues.
Recorded Statements versus EUOs
In Downie v. State Farm,2 the Washington Court of
Appeals examined the issue of substantial compliance
and ruled that a recorded statement is not a substitute
for an EUO and that it does not excuse an insured
from submitting to an EUO. In that case, the insured,
Thomas Downie, filed a claim for a lost Rolex watch
and a diamond ring under his State Farm policy.
Downie gave recorded statements to two different
claims representatives. Allegedly, he was further
asked but refused to sign a general authorization
allowing State Farm access to his confidential
records, and he refused to submit to an EUO.
State Farm informed Downie that it would not
accept nor deny his claim until he completed the
required investigation. Downie thereupon filed suit
against the insurer alleging breach of contract, bad

52     illustration by Sonya Taylor

THE BRIEF - WINTER 2007

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