Don’t Take “The Fifth” When Your Insurer Requires An Examination Under Oath

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The right to an EUO was recognized by the United States Supreme Court in Claflin.v Commonwealth, 110 U.S. 81, 3 S.C. 507, 28 L.Ed. 76 a decision unchanged since it was decided in 1888.

When an Insured is suspected of arson, or some other variation of insurance fraud, the insurer will almost always require testimony at examination under oath. The Insured often refuses to appear for examination under oath — a material condition of the policy — claiming the insurer’s demand was a bad faith attempt to deprive him of his right against self-incrimination stated in the Fifth Amendment to the US Constitution.

 Insurers, to avoid the problem raised by the California Supreme Court should never file, in California, a complaint for declaratory relief against an insured and compel the insured to file since, as a plaintiff, he would be unable to assert the Fifth Amendment to prevent a deposition or trial where he may incriminate himself.