Submitting Volumes Of Documents Through Which An Insurer Can Make An Intelligent Inquiry Into The Details Of The Loss Does Not Relieve An Insured Of Its Obligation To Appear For Examination Under Oath

Jul 19, 2010 By Shaun Marker Condominium Associations, Insurance

Here are common problems that arise when an insurance carrier requests examinations under oath in a claim filed by a condominium association:

  • The board of directors has changed and the current board members are not familiar with the details of the claim, damages, previous repairs and future necessary repairs;
  • The current board members are aware of the voluminous records and documents kept by the previous board through which the insurance carrier would be able to intelligently assess the details of the loss being claimed; and
  • The current board members will provide the insurance carrier with the documents and information for the insurer to ascertain all of the details of the claim, damages, previous and future repairs.

The next logical question from the board’s perspective is:

“If we are providing the insurance carrier with volumes of documents and information requested and all of the details of the claim and the insurer’s requested areas of inquiry can be found in the documents, then does that document production relieve us of our obligation to appear for examination under oath since we really do not have much knowledge beyond what the documents reflect?”

The answer to this question is no. Providing the documents and information to the insurer does not fulfill the contractual obligation to appear for examination under oath, even when the board members will not be able to proffer much more in the way of detailed information.

In Laine v. Allstate Insurance Co., 355 F.Supp. 2d 1303 (N.D. Fla. 2005), the insured owner of a commercial property that suffered a fire loss attempted to rely upon this argument. He argued that because he provided Allstate with records and releases authorizing Allstate to obtain additional information from accountants and banks, and responsive documentation to Allstate’s requests, he cooperated under Florida law and was relieved of the obligation to appear for examination under oath. Allstate had denied the insured’s claim for fire damages, citing his failure to appear for the examination under oath. The insured then filed a lawsuit against Allstate alleging breach of contract for failure to compensate him for his damages sustained in the loss under the insurance policy.

The Court disagreed with the insured’s argument and entered a summary judgment in favor of Allstate, holding that when the insured chose not to appear for the examination under oath, despite the document production through which the insurer could ascertain the details of the loss, the insured committed a material breach of the policy that relieved the insurer of its obligation to pay the claim. The Court noted that there is no authority to support the insured’s argument that an insured may provide documents and avoid the obligation to appear for an examination under oath. Lastly, the Court noted that the insurance policy required the insured to submit to an examination under oath upon request by Allstate, and not just to produce records or cooperate with Allstate’s investigation in other respects.

The contractual obligations to appear for examination under oath and provide documents requested are independent of one another and different burdens imposed on the insured to comply with those requests. The particular language of the policy can vary, however, so board members should be aware of the specific language in the relevant policies and that production of documents and information will likely not relieve them of their obligation to appear for examination under oath.

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