Examination Under Oath And 5th Amendment

A frequent phone call to insurance law lawyers is someone asking about participating in an examination under oath (EUO).

Most people understand what taking the 5th means.  It refers to our right to not be compelled to say anything that may be self-incriminating.  It usually is discussed in the context of a criminal proceeding or investigation.  However, the privilege against self-incrimination also applies in civil proceedings.  Just because you are in a civil case rather than a criminal case does not require a person to surrender this right.

In an insurance situation, an insurance investigation is contractual in nature.  Almost all insurance policies are going to contain a cooperation clause that requires the insured to cooperate with the investigation of a claim for which the insured is seeking policy benefits.  Courts in interpreting the cooperation clause have universally found that the insured cannot use the 5th Amendment to avoid cooperating with the insurance company yet insist that the insurance company provide the requested coverage.

This 5th Amendment issue most often comes up in the context of the insured being asked to cooperate by giving an EUO.  Some courts rule that insured’s use of the 5th Amendment at an EUO is a breach of the cooperation clause and other courts require the insurer prove they are prejudiced by the insured invoking this right.

The authority for requiring examinations under oath are the contractual obligations in the insurance policy.  As part of an insured’s general duty to cooperate with the insurer after a loss or once a third-party makes a claim, insurance companies include the examination under oath provision, either specifically or by implication, in both personal and liability insurance policies.  While the language in an individual policy may vary, the intent is the same—to obtain as much information from the insured as possible.  The examination under oath, therefore, has become one of the insurance industry’s most important tools in determining the accuracy of an insured’s claim and, in turn, in combating fraud and collusion.