The answer to this question is a resounding, it depends. As is often the case in law, the answer to this question depends on such things as the particular language of the policy, the areas of inquiry requested by the insurer, and whether different individuals have knowledge regarding the areas of inquiry.
In Florida Gaming Corp. v. Affiliated FM Ins. Co., 502 F.Supp.2d 1257 (S.D. Fla. 2007), the insured filed a lawsuit against its insurer for breach of contract and other counts. The insurer moved to dismiss or to stay the litigation and compel compliance with the examination under oath requirement as a condition precedent to the lawsuit. The insured produced one of its representatives (the corporation’s vice president) for examination under oath before filing the lawsuit, however, the insurer argued that the insured failed to comply with the examination under oath request because the insured did not produce its maintenance supervisor and public adjuster for examinations under oath.
The policy in Florida Gaming required the “insured” to submit to examination under oath, and the Court was not convinced that the plain language of the policy contemplated examination of the insured’s maintenance supervisor or public adjuster. The Court recognized the rule of policy construction requiring it to read the term “insured” narrowly, and added that if the policy language was deemed ambiguous, it could not hold that the “insured” referred to the insured’s employees and agents because a restrictive interpretation was required since the term not defined in the policy.
In this light, if an association can produce one or two of its board members with sufficient knowledge regarding the areas of inquiry to testify at the examination under oath, and then if the insurer demands ten (10) more individuals to appear for examination under oath, one of which is the property manager, this demand could be deemed excessive and contrary to the particular insurance policy and Florida law.
When evaluating an insurer’s right to investigate an insurance claim, the insurer’s rights tend to be measured by reasonableness, with the courts attempting to balance the insurer’s legitimate interest in ascertaining the validity and extent of the claim against an insured’s right to both privacy and prompt payment under the terms of the contract. 8A G. Couch, Couch on Insurance 3d §196:2.
These competing interests of reasonableness and compliance with the insurer’s requests are the source of debate between the parties regarding the number of examinations under oath that can be taken, particularly involving condominium associations. As such, there is not a bright line rule regarding the number of examinations that are always required, but the authority discussed above should be kept in mind while addressing these issues of concern and when the insurer’s requests become excessive and contrary to the plain language of the policy and Florida law.
