Have you ever read your automobile policy? If you have, you will find that your automobile carrier, just like your homeowner's carrier or general liability carrier has reserved its right to take what is called "an examination under oath". Your next question should be what does that mean? It basically means that your insurance carrier has the right to ask you questions about the facts and circunstances surrounding a claim that you are filing against them or the circumstances surrounding your representations made when applying for policy coverage. Your testimony is provided under oath after you are sworn in by a court reporter. Unlike a deposition in a civil case, the Connecticut Practice Book Rules don't apply as it is generally not being taken in conjunction with a pending lawsuit. It is usually taken pre lawsuit or if arbitration will be invoked under the applicable policy language, it will often be taken before your insurance carrier proceeds to arbitration.
Examinations under oath are to be submitted to by the policy holder for as many times as requested by the insurer. A failure to appear for one will probably result in both coverage denial for a breach of this specific policy covenant along with a breach of the insured's duty to cooperate. As our office has seen EUO's taken in uninsured/underinsured motorist cases, we have also have seen them requested when a client has made a medical pay claim under his medical pay automobile policy coverage provision. Sometimes carriers are attempting to ferret out fraudulent claims and will set an examination under oath up to determine whether a claim made by the policy holder is legitamate or whether representations made to secure coverage on a policy application were not truthful.
Examinations under oath are of a legal nature and should be taken by an attorney representing the insurance company on behalf of the insurer. Our office had one occassion where an adjuster wanted to take the examination under oath and we alleged that the adjuster was attempting to practice law without a license. There is some split authority in the United States on whether a field adjuster should be taking an examination under oath. We would argue that this is a legal matter and should only be taken by a licensed attorney. If an insurance carrier wants to take your examination under oath to preliminary decide a coverage issue or to assess a liability or damage claim, you should immediately secure counsel to protect your legal rights.
Examinations under oath are like depositions. However, they have some differences. The testimony provider signs the transcript where unlike a deposition, the signature by the deponent can be waived. The objections made by counsel are usually limited to attorney client privledge or witness badgering and there are no objections to form. Finally, unlike a Connecticut state court deposition, the transcript is fully paid for by the insurance carrier as the costs are not split as is the Connecticut Practice Book Rule in a Connecticut civil case. Finally, they are only to be provided by a policy holder as they are contractual in nature.
Regards, Peter Rotatori, III
