A Video Explaining Why a Plaintiff Has no Right to Assert Fifth Amendment Protection

Read the full article at https://www.linkedin.com/pulse/fifth-amendment-bad-faith-plaintiff-barry-zalma-esq-cfe and see the full video at https://rumble.com/vjhmk5-the-fifth-amendment-and-the-bad-faith-plaintiff.html  and at https://youtu.be/tVvD8-KGO9M and at https://zalma.com/blog plus more than 3800 posts.

The Fifth Amendment to the U.S. Constitution protects an individual from being forced to testify in a manner that might incriminate him or her and subject the witness to prosecution. It is a defense, however, not a weapon that can be used against a defendant in a civil suit. Since civil litigation is entered into voluntarily, testimony in a civil suit brought by a plaintiff is not a compulsion to self-incrimination because the plaintiff can protect his or her privilege by dismissing the suit.

In Fremont Indemnity Co. v. Superior Court of Orange County, 137 Cal. App. 3d 554, 187 Cal. Rptr. 137 (Cal.App.Dist.4 11/19/1982), plaintiff owned a restaurant. Fremont, the defendant, issued a policy insuring against its loss by fire. The policy included an exclusion under which the insurer would be relieved of liability on the policy if it were shown that the insured’s arson caused the loss.

After the fire, a criminal investigation into the origin of the fire was undertaken, and plaintiff came under suspicion. As a consequence, the defendant declined to pay plaintiff’s claim. Because of this, plaintiff filed suit against his insurer.

Before his scheduled deposition counsel for plaintiff notified counsel for defendant that plaintiff would not appear for his deposition because he had been indicted for arson and therefore was asserting his constitutional privilege against self-incrimination.

Since it was the plaintiff who claimed the privilege as to his own behavior which was vitally relevant to a coverage exclusion contained in the very fire insurance policy upon which he sought recovery, the Court of Appeal issued a peremptory writ of mandate to the Orange County Superior Court directing it to compel the testimony, and if plaintiff continued to  refuse to appear for deposition as ordered or refused to provide the documentary evidence as already ordered, the Court of Appeal instructed the trial court to dismiss plaintiff’s action. He continued to refuse and his case against his insurer was dismissed.