The Adverse Consequences of Refusing to Participate in an Examination Under Oath

If your property is damaged in a fire or through some other form of peril, insurance companies often request that an insured participate in an examination under oath.  During this examination, a representative of the insurance company, usually a lawyer, asks questions to ascertain information and confirm facts.  The insurance company also will typically request that you produce certain documents that substantiate your loss.  When an examination under oath is requested, the insured needs to participate to avoid damaging his or her claim. 

A recent case decided by an appellate court in an another state, Hanover Ins. Co. v. Cape Cod Custom House Theater, Inc., provides an example of the consequences that can flow from a lack of cooperation.  Although this case in not controlling law in Florida, the case is still instructive in terms of the importance of participating in an examination under oath.  The insured sought coverage for damage to his business caused by a burglary.  The insurance company conducted an investigation and believed that the insured might have been involved in the burglary.  Based on this investigation, the insurance company requested an examination under oath.

The insured failed to attend the first examination under oath and declined to answer relevant questions during the next two scheduled examinations on advice of counsel.  At trial, the judge found that the insured’s refusal to participate in a meaningful way in the examination under oath constituted a material breach of the insurance policy.  The trial judge also concluded that the breach prejudiced the insurance company.  Despite these findings by the trial judge, the court did not relieve the insurance company of the obligation to pay benefits under the policy because the judge determined that the prejudice could be cured with an attorney fee award.

The appellate court reversed the trial court.  The appeals court ruled that a policyholder’s unexcused refusal to comply with a reasonable request for an examination is a material breach that relieves the insurer of its obligations under the policy.  The appeals court indicated that the loss of eligibility for benefits when an insured wilfully refuses to participate in an examination under oath constitutes an exception to the general rule that the insurer must be prejudiced by the breach by the insured.

If you are asked to participate in an examination under oath after you submit an insurance claim, you should contact an experienced Florida insurance claims attorney.  The attorney can advise you of your rights and assist you in preparing for the examination under oath.  This is an important part of the claims process, so you should never simply fail to appear or attend without consulting a lawyer.

If you have questions about an insurance claim arising from damage to your home or business, we offer a free consultation, so we can answer your questions.  My law firm has proven success representing  policyholders in claims disputes in Miami and throughout Florida.  The Law Firm of J.P. Gonzalez-Sirgo, P.A. offers free consultations and free case evaluations.  No Recovery, No Lawyer Fees.  Call 305-461-1095 or Toll Free 1-866-71-CLAIM.

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