As I previously mentioned in Examinations Under Oath Can Be Tricky For Associations, most insurance policies have a requirement that an insured sit for an examination under oath upon the insurer’s request. As I stated last week, failing to attend an examination under oath may be grounds for an insurer to deny coverage.
One question arises when an insurer does not request an examination under oath until the insured has filed a lawsuit for breach of contract. Insurers sometimes argue that it is a requirement under the policy that an insured sit for an examination under oath when an insurer requests it, no matter when that request occurs. Florida courts have addressed this issue and have usually found that an insured is not required to comply with an examination under oath request if the request was not made prior to the insured filing suit.
In Goldman v. State Farm Fire General Insurance Co., 660 So.2d 300 (Fla. 4th DCA 1995), the Court held that when an insured makes a claim under a policy in which one of the conditions precedent to filing suit requires that the insured comply with a request by the insurance company for an examination under oath, failure to do so may be a material breach of the policy. In Goldman, the insured filed a claim for a burglary and submitted a proof of loss setting forth the amount of losses claimed. State Farm requested an examination under oath in accordance with the policy conditions.
When the date for the examination under oath grew near, however, the insured rescheduled the examination for another more convenient time. After State Farm had agreed to this extension, the insured filed a lawsuit alleging that State Farm breached the contract by failing to pay the amounts claimed under the policy.
In the end, the Court ruled that because the insurer had requested the examination under oath prior to the lawsuit, the examination under oath was a condition precedent to filing suit. Therefore, the Court determined that the insured had breached the contract and was not entitled to payment under the policy.
A much different scenario exists when the insurer does not request an examination under oath prior to the lawsuit being filed. This situation arose in Willis v. Bankers Insurance Company, 736 So.2d 1272 (Fla. 4th DCA 1999). In Willis, the Court distinguished the facts in Goldman because of the time when the examination under oath was requested. Since the insurer did not request the examination under oath until after the suit was filed, the court held that the examination under oath was not a condition precedent to filing suit. Therefore, the insured in Willis did not breach the contract by refusing to sit for the examination under oath.
The important part of the policy language in both of these instances is the wording of the examination under oath provision. The provision generally reads that the insured must submit to an examination under oath when the insured requests it. The examination under oath is not always a requirement during the investigation of the claim. If the insurer does not request that one be taken, it would not make sense to allow them to come back after litigation is filed and claim that the insured has violated the policy conditions by not sitting for one.
Examinations under oath are important parts of insurance claims and should be taken seriously. Before making any decision about whether you or your clients must attend an examination, it is always best to check with an attorney. That way you can be fully informed about your options and do not risk the insurer claiming that there has been a material breach of the policy.
