What is an Examination Under Oath by Your Insurance Company?

An Examination Under Oath (EUO) under California Insurance Code § 2071.1 is a formal, sworn proceeding in which an insurance company questions a policyholder (the insured) about the facts, circumstances, and details of an insurance claim. It is usually set when the insurance company is suspecting that the claim is fraudulent. The examination is typically conducted by an attorney or representative for the insurer, with a court reporter present to transcribe the testimony under oath (similar to a deposition but occurring during the claims investigation process, before any lawsuit).

It is important to distinguish between a hostile examination where fraud is the true focus vs. an information gathering process where you insurance company is attempting to see whether you or the other side (in a car accident claim for example) is telling the truth about what happened.

If you refuse an examination under oath you will risk losing insurance coverage. On the other hand, these examinations are sometimes used by the insurance company as ammunition to have the insured (you) charged criminally with fraud. Be careful!

Context and Purpose

California Insurance Code § 2071 (the standard fire insurance policy provisions, which many property policies incorporate) requires the insured to "submit to examinations under oath" as a condition of the policy, "as often as may reasonably be required" and "subject to the provisions of Section 2071.1."

The EUO helps the insurer gather information that is often uniquely known to the insured, such as:

Details of the loss or damage
Circumstances surrounding the claim
Documentation of the claim amount
Potential coverage issues
Fraud and abuse

We had a fire case once where the OE focused on why the owner's dogs were out of the house when the fire started. The insurance company anticipated fraud knowing that the owner was unwilling to sacrifice the lives of his dogs when he set the fire!

It is not intended for harassment or unrelated purposes. Insurers commonly request an EUO in property damage claims (e.g., fire, theft, or other covered losses), especially if there are questions about the claim's validity, the extent of loss, or suspected issues like misrepresentation.

Key Rights of the Insured Under § 2071.1

Section 2071.1 (enacted in 2001) acts as a "Bill of Rights" for insureds during an EUO. It applies to examinations under the standard fire policy (or similar provisions in property policies originated or renewed on or after January 1, 2002). Among the rights are:

Notice requirement: The insurer must notify the insured of its intent to conduct the EUO and include a full copy of § 2071.1 with the notice.
Scope limitation: The insurer may only ask about information that is relevant and reasonably necessary to process or investigate the claim. Questions must stay within proper bounds (the insured can object to improper questions, similar to objections allowed in a deposition under state or federal law).
Reasonable conditions: The EUO must occur on reasonable notice, at a reasonably convenient place, and for a reasonable length of time.
Representation and recording: The insured may be represented by counsel and may record the entire proceeding (including audio or video). But beware that this recording may be discoverable in a civil lawsuit. So in other words a third party who is not involved wtih your insurance company but is suing you for a car accident (as an example) - may demand that recording!
Transcript and recording access: Upon request (and free of charge), the insurer must provide the insured with a copy of the transcript and any audio/video recording that exists.
Other protections: The insured can assert privileges (e.g., certain tax returns may be privileged but might still be relevant in some cases), and the process must comply with the overall duty of good faith and fair dealing.

The insured must generally cooperate with a proper EUO request, as failure to do so can lead to denial of the claim. However, the insured can challenge overly broad, unreasonable, or abusive requests.

CIVIL DISCOVERY

In litigation in let's say a car accident case you get something called discovery. You can ask the other side to produce documents for example. You can also issue subpoenas to third parties to get their documents. So how about this - how many attorneys have issued a subpoena to the opposing party's INSURANCE company asking for copies of any statements given under an Order of Examination? Also, you are entitled (as the person examined), to get a copy of your own statement. Once you have that (and that is a choice), are you obligated to turn it over if you receive a demand for any "statements you made regarding this accident"". If you don't have a copy do you have to disclose that the insurance does?

The landmark California case Wilson v. Superior Court of Los Angeles County, 226 Cal.App.2d 715 (1964) held that information acquired by an insurance company's investigator from witnesses before a lawsuit was filed and before counsel was retained by or on behalf of the defendant could not be excluded under the work product doctrine. If you appear at an EUO with a lawyer that is a factual difference from Wilson but it may not matter. The examination is not attorney work product. It is not a settlement negotiation. It is a contractual right being exercised by the insurer.

The flip is this - maybe you were not examined under oath but what about the opposing side. You certainly should consider an SDT for that item (directed to the insurance company) and discovery requests directed to your litigation opponent. Now flipping the coin - if you want to oppose this type of request there is some law in your favor.

In Fireman's Fund Ins. Co. v. Superior Court, 196 Cal.App.4th 1263 (2011), the California Court of Appeal held that deposition questions implicating an insurer's attorney's opinions and strategies during a claim investigation were subject to the absolute work product privilege under § 2018.030.

In Fireman's Fund the trial court ordered a Fireman’s Fund lawyer to attend a deposition and at the deposition he was ordered to answer five questions. He objected on the standard legal grounds of attorney-client and work product privileges. The trial court overruled this because attorney-client privilege applies only to communications directly between and an attorney. The court found that the absolute work product privilege applies only to an attorney’s work product that has been written down. This was a hotly contested issue. The Court of Appeal ruled in favor of the awyer and privilege saying that Evidence Code section 952, which establishes the attorney-client privilege was broader than the trial judge thought.. The Court of Appeal stated that confidential communications and also the legal opinions of the lawyer were protected. Also the court found that the absolute work product privilege was not limited to something written down. It could apply to non-written work product.

Similarly, in Southern California Edison Co. v. Superior Court, 102 Cal.App.5th 573 (2024), the court held that documents prepared as part of an attorney-led internal investigation received at least qualified work product protection, placing the burden on the requesting party to show that denial of disclosure would unfairly prejudice the party in preparing its claims.

In this case a utility company had to respond to a government inquiry so they hired a lawyer to investigate and make a report. A third party tried to get the report. The utility (Southern California Edison) asserted attorney-client privilege and attorney work product privilege. The inquiry at the trial level led to the conclusion that the report was necessary in order for the utility to comply with a statute. The statute required an investigation into the cause(s) of a fire. The issue turned on whether the document contained (or was) a witness statement or an internal evaluation. Bear in mind that many witness statements were in the report. Balancing disclosure of facts vs the need to allow a full investigation without public disclosure (which might hamper the investigation) the Court of Appeal protected the material.

In the federal context, under Fed. R. Civ. P. 26(b)(3), documents prepared in response to a clear threat of litigation and containing mental impressions and conclusions of the insurer's representative are protected work product and generally not discoverable Baker v. CNA Ins. Co., 123 F.R.D. 322 (1988).

So thinking back to the Wilson case, if, the EUO was conducted at the direction of defense counsel in anticipation of litigation, the insurer may raise valid work product objections, and you would need to demonstrate substantial need and undue hardship to overcome qualified work product protection, or show that only non-opinion fact work product is at stake. But if you, the insured person have demanded a copy of the examination you do not have the same work product or attorney-client privilege. You may be forced to turn it over.

Practical Notes

EUOs are often (but not always) requested when the claim involves a special investigation unit (e.g., potential fraud concerns or large/complex losses).
Preparation is important: Insureds are strongly advised to consult an attorney experienced in insurance claims before attending, as the sworn testimony can be used later (e.g., in litigation) and inconsistencies may affect coverage.
The proceeding is sworn testimony, so answers must be truthful; lying under oath can have serious legal consequences.

If you have an insurance claim that is valid but you are being examined under oath you should consider hiring an attorney. The Horowitz office can represent you. Call us at (925) 283-1863,