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22
T H E P R I M E R U S P A R A D I G M
Five Important Considerations for
Maximizing the Examination Under Oath
When an insurance claim is made, the
insurer gathers information from a variety
of sources to determine the insurer's
rights and obligations under the policy.
The insurer may obtain information
from the insured through informal
conversations, recorded statements,
document requests and examinations
under oath. An examination under
oath ("EUO") is a formal proceeding
during which an insured, under oath, is
questioned by an insurance company
representative. This article will address
five important considerations that go into
taking an effective EUO.
1. Know Your Policy
Virtually all insurance policies provide
an insurance company with the authority
to investigate an insured's claim by
means of an EUO and require that the
insured submit themselves for an EUO.
If the insured fails to comply with an
insurer's demand for an EUO, this is
generally considered a material breach
of the insurance policy which may
alleviate the requirement that the insurer
pay for the claim.
It is important for an insurer who
intends to conduct an EUO to understand
the distinction between a recorded
statement and an EUO. Recorded
statements are typically a recorded
oral statement given by an insured to
the insurer's representative. Recorded
statements may be used to gather
information by insurance companies
at the outset of a claim. Most are taken
informally, over the telephone. An
EUO is a more thorough examination
by a lawyer for the insurance company
which is conducted under oath and is
transcribed by a court reporter.
Many policies do not require an
insured to submit for a recorded
statement. As such, unless the policy
requires both a recorded statement and
an EUO, it is important to not advise
insureds that they have failed in their
duty to cooperate if they refuse to give
a recorded statement. If the insured
gives a recorded statement, the insurer's
representative should advise the insured
that the insurer is not waiving its rights
to require EUO testimony at a later date.
It is not uncommon for the insured's
attorneys to claim that if a recorded
statement is taken that is not specifically
mandated by the policy, the insurer
has elected to proceed with that route,
thereby waiving its right to an EUO.
Placing a statement on the record at the
outset of the EUO, like the one noted
above, will aid in opposing any such
argument.
2. Choose the Right Counsel
Insurers should have specific counsel
identified for taking EUO testimony.
Simply because an insurer has panel
counsel identified to handle its litigation,
does not mean that that attorney will
be competent in handling an EUO. The
attorney taking the EUO must have
an understanding of the differences
between an EUO and the general
North America ­ United States
Bradley C. Nahrstadt is a founding partner of the Chicago
litigation firm of Lipe Lyons Murphy Nahrstadt & Pontikis Ltd. He
concentrates his practice on the defense of complex products
liability, mass tort and professional liability matters in state and
federal courts around the country.
Ryan A. Kelly is an associate of the firm who concentrates
her practice in the defense of construction litigation, complex
products liability, mass tort, professional liability and
commercial automobile matters.
Lipe Lyons Murphy Nahrstadt &
Pontikis Ltd.
230 West Monroe Street
Suite 2260
Chicago, Illinois 60606
312.279.6914 Phone
312.726.2273 Fax
bcn@lipelyons.com
rak@lipelyons.com
lipelyons.com
Bradley C. Nahrstadt
Ryan A. Kelly