Examinations under oath (EUOs) are an important investigative tool used by insurance carriers to uncover fraudulently filed claims and to commit claimants to their story on the record. EUOs look like depositions but generally do not follow the rules that govern depositions. For example, a witness who refuses to answer questions at a deposition can have the basis for his or her refusal adjudicated by the court; if the refusal is unfounded, the remedy usually is to direct the witness to answer the question and rarely results in forfeiture of the witness’ claim or defense. At an EUO, the consequences for failing to answer a question are more severe.
Generally speaking, a policyholder’s attendance at an EUO is mandatory. Insurance policies typically provide that participation is a condition precedent to coverage of a first-party claim (e.g., a claim by the policyholder) and is required before a policyholder may prosecute a claim. So, for instance, an apartment owner who has filed a claim for stolen jewelry can be required to appear at an EUO, where he or she will be asked questions ranging from “Where was the last place you saw the jewelry?” and “When did you see it last” to “How much did it cost?,” “Do you have receipts?,” and the like.1 It is worth observing that courts have stated that the duty to cooperate at an EUO is broader even than the scope of discovery in litigation.2
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