Personal Injury Examination Under Oath & Case Law Examples

Personal Injury – Examination Under Oath

Brien Roche

Within most insurance policies there is a condition that the insured submit to what is called an examination under oath. The Virginia family auto policy states that as a duty after an accident or loss. It says that the person seeking any coverage must submit to, as often as the company reasonably requires, an examination under oath and subscribe the same. “Subscribe the same” means that they must sign off on the examination. In addition that provision further authorizes the insurance company to obtain not only medical reports but also other pertinent records.

As such the carrier can request the examination. In addition, it can require the production of pertinent records.

The dictionary definition of “pertinent” is “relevant or applicable to a particular matter”. “Relevant” means that it is likely to prove or disprove some issue in the case. The issue in any liability case is whether or not there is a liability and if so, what are the damages. In the coverage matter the issues are compliance with the terms of the policy.

Personal Injury Examination Under Oath – Case Law

There is not a lot of Virginia case law on the issue. In U.S. Specialty Insurance Co. v. Sky Master of Virginia, Inc., 26 Fed. Appx. 154 (4th Cir. 2001) (unpublished) the court cited an insurance text and noted that these types of examinations are not limited to the amount of the loss. Rather the insurance company has the right to examine the insured as to any matter that is material to the insurer’s liability and the extent thereof.

The person seeking coverage is probably not entitled to rely upon the 5th Amendment privilege as a basis for not answering questions. That is to say constitutional immunity has no place in a private examination arising out of a contract. Powell v. USF&G Co., 88 F.3d 271 (4th Cir. 1996)

The intermediate court in Maryland in Dolan v. Kemper Independence Insurance Co., 237 Md. App. 610 (2018) dealt with an issue of where the insured refused to give the examination. This refusal constitutes a breach of the policy. In addition, it barred the right of the insured to pursue a claim against the carrier. Submitting to a deposition was not deemed to be a substitute.