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Who Determines if the Examination Under Oath was Meaningful?

examination under oathExaminations Under Oath are an important part of an insurance company’s investigation of an insurance claim.  We have previously discussed the importance of EUO’s and how they impact your insurance claim.  But who determines  if the examination under oath (EUO) was meaningful?

We have previously discussed the importance of not only fully cooperating with an insurance company’s investigation of the claim, but to ensure that you attend an EUO when requested to do so.  Indeed, failure to sit for an EUO may result in the denial of the insurance claim.  On the other hand, however, EUO’s do have their limits.  They are not open ended expeditions for an insurance company to inquire on topics that go beyond the insurance claim at issue.

But what happens when an insured sits for an EUO and the information provided is less than “perfect.”  Is an “inadequate” EUO grounds for an insurance company to deny the claim?

That was the issue the issue the Fourth District Court of Appeal was confronted with him in Solano v. State Farm, 2014 WL 1908827 (4th DCA 2014).  In Solano, State Farm was initially presented with a Hurricane Wilma claim.  State Farm initially agreed to pay Solano for the damage.  After the initial payment was made by State Farm, Solano requested that the claim be re-opened in order to seek greater compensation.

Once the claim was re-opened, State Farm requested that Solano appear for an EUO.  Solano appeared for the EUO, and answered questions.  However, his wife failed to appear for an EUO.  State Farm requested that Solano’s public adjuster also appear for an EUO, but the public adjuster took the position that State Farm could not compel him to appear for an EUO.

Solano eventually filed a lawsuit against State Farm.  At the trial level, the trial judge granted summary judgment in State Farm’s favor on grounds that the Solano’s wife and public adjuster’s failure to appear for the EUO barred the claim.  On appeal, however, the Fourth District Court of Appeal reversed.

The appellate court noted that there was not a total failure to comply with the EUO request made by State Farm.  Indeed, Solano had appeared and answered questions during his EUO.  The appellate court also noted that State Farm could not demonstrate that it could compel the public adjuster to appear for an EUO.  Moreover, the appellate court also noted that while the public adjuster could not be compelled to the EUO, the public adjuster had nonetheless provided documentation to State Farm and even met with State Farm, at the property, to discuss the claim.  The appellate court noted that State Farm should have had enough information to either settle this claim with Solano or go to appraisal.

Failure to Submit Sworn Proof of Loss is not a Bar to an Insurance Claim

We recently discussed the Fifth DCA’s ruling in Whistler Park v. FIGA.  Thereafter, the Fifth DCA issued another ruling relying on Whistler Park.  In sum, and under certain circumstances, one’s failure to submit a sworn proof of loss is not a bar to an insurance claim.

In Hamilton v. State Farm Florida Insurance Company, Florida’s Fifth District Court of Appeal concluded that the facts in the case determined that there was a disputed issue of material fact regarding whether or not State Farm was, in fact, prejudiced by Hamilton’s alleged failure to submit a sworn proof of loss to the insurance company. The Fifth DCA ruled that they would base their findings on Whistler’s Park, Inc. v. Florida Insurance Guaranty Ass’n.

As stated in more detailed in our previous post, the Whistler Park court found that the insurer was not prejudiced by the insured’s failure to comply with conditions precedent prior to filing suit because the insured had expressed a willingness to comply and the insurance company had failed to follow up.

The Fifth DCA seems to be moving in the direction of trying to prevent the “gotcha” litigation tactics that many insurance companies seem to employ.  Indeed, the appellate court, in Whistler Park, observed that many insurance companies have, in Florida, lost sight of the true purpose of the EUO and instead engage in gotcha litigation tactics in order to potentially save themselves from paying on valid insurance claims.  The court went on to comment that litigating cases in this way seems “more about strategy than truth.”

In the Hamilton case nevertheless, the proof of loss was filed seven months after filing suit. In Hamilton, the court granted the motion for rehearing in favor of the Plaintiff and remanded the case to the trial court to determine if the insurer has been prejudiced or not by the Plaintiff’s failure to submit a sworn proof of loss.

Appellate Court Concludes that Failure to Appear for an EUO Does Not Bar an Insurance Claim

Insurance policies often require an insured to comply with certain conditions before a lawsuit can be filed.  Such conditions could include sitting for an examination under oath (EUO) or preparing a sworn proof of loss, among others.  Failure to comply with those conditions prior to the filing of a lawsuit could result in contested litigation for years regardless of how much damage your property has sustained.

The bottom line is that one should timely comply with all requests submitted by insurance companies prior to filing suit.  But what is one to do if they make every possible effort to comply with those requests, but the insurance company does very little to actually obtain the information being requested?

A Florida Appellate Court concluded that the insured’s failure to appear for an EUO did not bar the insurance claim.

In Whistler’s Park v. FIGA, the appellate court asked if the true purpose had been lost in the recent cottage industry of EUO litigation in Florida courts.  That court answered that question by stating many insurance companies have, in fact, lost sight of the true purpose of the EUO and instead engaged in gotcha litigation tactics in order to potentially save themselves from paying on valid insurance claims.  The court went on to comment that litigating cases in this way seems “more about strategy than truth.”

In Whistler’s Park, the insurance company had requested an EUO.  But the EUO was never in fact scheduled prior to the filing of suit.  Nonetheless, the trial court granted summary judgment in favor of the insurance company because the EUO never took place.  However, the appellate court reversed that ruling.  In vacating the trial’s court ruling, the appellate court concluded that the insurance company was never in fact prejudiced by the insured’s failure to attend the unscheduled EUO.  The appellate court concluded that the insurer was not prejudiced in this case because the insured expressed a willingness to comply, but the insurer failed to set up a time and place.

 

 

Insured Beats Insurance Company on Appeal Over Issue Associated with Appraisal and an Examination Under Oath – Know Your Rights

insurance euo miami.jpgAs we have discussed before, most insurance policies have several conditions that the insured must satisfy before an insured can file a lawsuit against the insurance company. One such condition is having the insured sit for what is known as an Examination Under Oath (EUO.)

However, EUO’s are often the source of disputes between the insured and the insurance company. Indeed, insurance companies will often use an EUO as a tool to force an insured to drop their claim.

As we discussed previously, the Third District Court of Appeal located in Miami chastised an insurance company for its conduct during an EUO and awarded attorney fees to the insured. In that case, the lawyer hired by the insurance company attempted to bully the insured into dropping the claim in an effort to save the insurance company money.

Another often hotly contested issue is simply the issue of where the EUO will take place. As we discussed previously, the Fourth District Court of Appeal in Goldman v. State Farm, 660 So.2d 300, (Fla. 4th DCA 1995) specifically determined that the EUO must take place at a “mutually convenient time and place as contemplated by the policy.”

Another issue that often pops up during an EUO is whether or not a public adjuster can be present during the EUO. The Fourth District Court of Appeal in Nawaz v. Universal Property Insurance Company, 2012 WL 2121178 (Fla. 4th DCA 2012) was presented with the issue of whether the insurance policy prevents the insured from having his public adjuster present during the examination under oath. In that case, the appellate court concluded that “under the plain language of the insurance contract between the parties, that the insured was not prohibited from having his public adjuster present during the insured’s examination under oath.”

These rulings shed light on the ever evolving law associated with EUO’s, but also highlights the importance of complying and properly satisfying any and all requests made by an insurance company to sit for an EUO.

On the one hand, an insurance company cannot unilaterally schedule an EUO at the time and place of their choosing while also using the EUO as a tool to intimidate and bully an insured into dropping their claim. Unless specifically referenced in the insurance policy, the insurance company cannot also refuse to permit a Public Adjuster from being present during the EUO.

But on the other hand, a failure to comply with an insurance company’s request to sit for an EUO may result in the denial of insurance benefits due to the insured’s failure to cooperate and adhere with all of the terms and conditions of the insurance policy.

Contact us today if you are in doubt of your legal rights under your insurance policy.
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EXTENDED BODY:
Consider Your Options. Contact Us Today.

Before opening our law firm in 2006, our attorneys worked for some of the state’s, and nation’s, largest law firms, and worked representing the insurance companies for years. Our attorneys are now uniquely positioned to use that experience to assist individuals and businesses alike throughout Florida with their insurance claims. As a result, our attorneys are well versed in the impact insurance has on businesses, condominiums, and individuals alike. Our insurance litigation practice group is prepared to tackle your insurance claim.

Given our extensive experience litigating for, and against, insurance companies, our insurance litigation practice group is prepared to provide aggressive, efficient and effective representation on a broad spectrum of insurance claims in Florida for local, national, and international clients. We are prepared to advocate insurance claims at the pre-suit stage, trial, appellate and arbitration levels.

If you are facing a dispute over an insurance claim in Florida, contact Alvarez & Barbara, LLP, for a free and confidential consultation to discuss your rights.

Call us today toll free at 1-866-518-2913 or at 305-263-7700.

Examinations Under Oath Must Take Place at a Mutually Convenient Time and Place as Contemplated by the Insurance Policy

images.jpgAs we have discussed before, most insurance policies have several conditions that the insured must satisfy before an insured can file a lawsuit against the insurance company. One of the most common condition is having the insured sit for what is known as an Examination Under Oath (EUO.)

An EUO is a sworn statement given by someone who has made an insurance claim. Insurance companies typically use this procedure as part of their claims handling process and investigation. But they also employ an EUO if they suspect fraud, or if they are considering disputing coverage before going into litigation.

EUO’s could be tape recorded, or even video taped. But it will certainly be transcribed, and you will be sworn to tell the truth. The sworn testimony that you give will also be used by the insurance company to serve their interest, and against you, if possible.

EUO’s could also often times be very intimidating. Part of that intimidation may be to employ the use of overly aggressive defense lawyer in an effort to intimidate the insured into dropping their insurance claim.

One of the most common methods used in intimidating an insured is when the lawyer hired by the insurance company insists on conducting the EUO at their office as opposed to a mutually convenient time and place.

This is critical because in the insurance company friendly ruling in Goldman v. State Farm, 660 So.2d 300, (Fla. 4th DCA 1995), the Fourth District Court of Appeal specifically held that an insured’s failure to sit for an EUO could jeopardize their insurance claim. But the court also opined that the EUO must take place at, “a mutually convenient time and place as contemplated by the policy.”

Therefore, and absent specific language in the insurance policy dictating specifically where the EUO must take place, it is incumbent upon the parties to mutually agree upon the location of the EUO. This is bolstered by the fact that said position was specifically set forth in the Goldman ruling.
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EXTENDED BODY:
If you are in doubt regarding your legal rights under the insurance policy, or you are in need of assistance with your insurance claim, please feel free to call us today to discuss your claim.

The Importance of the Examination Under Oath (EUO) and How it Impacts your Insurance Claim

interrogation-3.pngWhat is an Examination Under Oath?

Most insurance policies have several conditions that the insured must satisfy before an insured can file a lawsuit against the insurance company, and that is part of the insurance company’s duty to investigate. One of the most common condition is having the insured sit for what is known as an Examination Under Oath (EUO.)

An EUO is a sworn statement given by someone who has made a claim due to water damage, wind damage, hurricane, roof claim, lightening, car accident, or some other form of risk that is insured. Insurance companies typically use this procedure as part of their claims handling process and investigation. But they also employ an EUO if they suspect fraud, or if they are considering disputing coverage before going into litigation.

It should be noted that the EUO could be tape recorded, or even video taped. But it will certainly be transcribed, and you will be sworn to tell the truth. The sworn testimony that you give will also be used by the insurance company to serve their interest, and against you, if possible.

Who has to sit and attend an EUO?

Every insurance policy has a “named insured.” Therefore, the “named insured” has to appear for the EUO. However, in some instances, the “named insured” may not be the person with the most knowledge as to the claim of loss. As such, the insurance company will require the person with the most knowledge of the loss to appear in addition to the “named insured.”

So for instance, the home could be owned by your elderly mother. Your elderly mother is the “named insured” since she owns the home. If the insurance policy is written in a broad enough context, it could be possible that you will also have to appear for an EUO even though you don’t own the home, and you are not listed as “named insured.” The reason being is that you may the best person with the most knowledge as to the loss in question.

At the EUO, an insurance company is limited in scope to the types of questions that can asked. In fact, a recent Florida appellate court ruling admonished insurance companies for their practices of attempting to intimidate insured’s during EUO’s when the insured appears without an attorney. Nonetheless, the insurance company will no doubt ask questions about your background, family history, educational history, employment history, claim history (other insurance claims), financial history (bankruptcies and the like), military history, criminal convictions, and credit history. This is all before they ask you one question about your claim. Most EUOs take several hours, and some could even take several days.

What if you don’t cooperate?

Most insurance policies contain what is known as a “cooperation clause.” What that means is that the named insured has a duty to cooperate with the insurance company during its investigation of the claim. And one of those requirements is often times to sit for an EUO.

Should the named insured fail to appear for scheduled EUO, then the insurance company could deny the claim. The reason being is that the named insured failed to comply with its duty to cooperate with the insurance company when it failed to sit for an EUO.

Additionally, just showing up for an EUO is not enough. The insurance company may require the named insured to bring documents such as tax returns, checking account information and the like to the EUO. The failure to bring those documents may also serve as grounds to deny the claim.

Moreover, an insured’s failure to answer certain questions during an EUO may also serve as the basis for a denial of the claim by the insurance company. However, a recent Florida appellate court case made it understood that an insurance company should not intimidate an insured during an EUO to the point that an insured feels forced to walk out of an EUO.

Should You be worried?

Yes, you should worry if your insurance company asks you for an EUO. The insurance company is not going to hire a lawyer to interrogate you because they want to help you substantiate your claim. They suspect fraud or are collecting information, from you, in order to deny your claim. You have the right to have your own lawyer at an EUO. However, you are not required to have your own attorney. In fact, and as this recent case from the Third District Court of Appeal makes abundantly clear, the insurance company will be delighted if you appear without a lawyer. If you do not have an attorney, we recommend you consult with an attorney before attending any EUO.
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EXTENDED BODY:
Consider Your Options. Contact Us Today.

If you are facing a dispute over an insurance claim in Florida, contact Alvarez & Barbara, LLP at 305-263-7700 or toll free at 866-518-2913 for a free and confidential consultation to discuss your rights.

An Appellate Court Chastised an Insurance Company for its Conduct during an Examination Under Oath and Awarded Attorney Fees to the Insured

interrogation.jpgAn insurance company was chastised by the Third District Court of Appeal for its conduct during an examination under oath.

An examination under oath is a common condition precedent to the filing a lawsuit against an insurance company that is found in just about every insurance policy. Should an insured fail to sit for an examination under oath then the insured jeopardizes potential insurance coverage for the loss.

Along those same lines, it is not uncommon for an insurance company to deny coverage even after the insured appears for an examination under oath but fails to answer certain questions asked during the examination. Often times the insured appears at an examination under oath without the presence of an attorney. In such circumstances it is not uncommon for the attorney hired by the insurance company to attempt to bully and intimidate the insured into either not answering certain questions by inquiring into areas that are simply not material to the claim, or by intimidating the insured into dropping the claim out right.

In light of such tactics it is of paramount importance to be represented by legal counsel prior to sitting for an examination under oath. At our firm, we worked for the insurance companies prior to opening our doors for business. We know the tactics that an insurance company will use to stonewall and delay your claim. Better to contact us today and before an examination under oath to ensure that your claim is properly handled and to maximize the potential recovery from the insurance company.

Court Ruling Taking an Insurance Company’s Conduct to Task

In a case decided by the Third District Court of Appeal, the appellate court admonished an insurance company for its conduct during an examination under oath.

In that case, a truck owner had his truck stolen. The truck owner had prior unrelated criminal convictions on his record. The truck owner then made a claim with his insurance company seeking reimbursement for his stolen truck.

The insurance company then required the truck owner to come and sit for an examination under oath. The truck owner did just that, but without an attorney.

The truck owner felt so intimidated by the insurance company’s attorney during the examination under oath that he walked out. The reason being is because the attorney for the insurance company spent almost the entire examination focusing on the truck owner’s prior criminal convictions and spent very little time discussing the actual loss.

The truck owner then retained the services of an attorney, and filed a lawsuit against the insurance company. The insurance company ultimately paid the full amount of the claim. However, and despite obtaining a successful result from the insurance company, the trial court denied the truck owner’s claim for attorney fees. The truck owner then filed an appeal with the third District Court of Appeal.

The Third District Court of Appeal concluded that the trial court was wrong and that the truck owner was entitled to attorney fees. In so ruling, the Third District Court of Appeal placed boundaries on the appropriate conduct during an examination under oath. Indeed, the Third District Court of Appeal concluded that the insurance company had unfortunately “decided to use the usual policy provision requiring a sworn statement as a license to make unwarranted and intrusive inquiries into the personal life of any insured who has the temerity to make a claim against it.” The court also found that when the insurance company “invited [the truck driver] to withdraw his claim in lieu of responding” to questions was improper and harassing.

In light of those circumstances, the Third District Court of Appeal found that it was necessary for the truck driver to resort to litigation in order to resolve his claim. Reasoning that the “statute was enacted for the very purpose presented in this case – to discourage the games insurance companies play,” the Third District Court of Appeal concluded that the trial court “improperly employed” the statute and that the insurance company could not “escape the consequences of what it tried to get away with in this case.”

As such, the truck owner was awarded attorney fees to be paid by the insurance company.
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EXTENDED BODY:
Consider Your Options. Contact Us Today.

This case should serve as a reminder that insurance companies will try just about anything in an effort to not pay on a certain claim. Therefore, if you are facing a dispute over an insurance claim in Florida, contact Alvarez & Barbara, LLP at 305-263-7700 or toll free at 866-518-2913 for a free and confidential consultation to discuss your rights.

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