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In a suspicious insurance coverage declare, it is not uncommon for insurers to request that an insured reply questions concerning the declare at an examination below oath (“EUO”). However a brand new opinion from the California Court docket of attraction modifications what an insured can report at an EUO. In Myasnyankin v. Nationwide Mut. Ins. Co., — Cal. Rptr. 3d –, 2024 WL 340287 (Jan. 30, 2024), the court docket held that an insured can now demand to videotape not solely the individual taking the EUO but additionally anybody else current through the continuing. In so ruling, the court docket relied on California Insurance coverage Code part 2071.01(a)(4) which states that an insured “could report the [EUO] examination proceedings of their entirety.” The court docket interpreted this language to imply that an insured is permitted to report “each ingredient and a part of the examination continuing,” together with the insurer’s representatives at an EUO. An insured additionally doesn’t want to rent knowledgeable videographer. The insured can report the continuing on a smartphone which “will be positioned on a tripod or in any other case propped up and left to report the insurer’s representatives, with out the necessity for an individual standing by.”
The court docket rejected Nationwide’s argument that video recording an insurer’s representatives who should not questioning the witness was unreasonable. The court docket solely exempted the recording of an insurance coverage firm’s collaborating adjusters if they seem remotely on the EUO and their cameras are turned off. The court docket dominated {that a} distant viewer who is just not seen on the teleconferencing platform is just not a part of the proceedings for functions of Part 2071.1(a)(4).
The events didn’t transient, and the court docket didn’t resolve, whether or not the fitting to report “extends past the questions and solutions of the examination to embody all discussions and exchanges from . . . the second the members enter the room or be a part of the videoconference till the second they depart.” The court docket famous in a footnote, nevertheless, that “it might be cheap to construe the statute to incorporate such a temporal completeness.” Id. at 750 n. 10. Thus, whether or not an insured has the fitting to report discussions or occasions throughout breaks is just not completely clear and should give rise to future disputes.
Myasnyankin has modified the principles of the highway for EUOs and doubtlessly created a state of affairs that encourages aggressive policyholder attorneys to have interaction in harassing conduct. The very act of videotaping an adjuster with a smartphone throughout an EUO is itself provocative and never constructive. An aggressive public adjuster or lawyer representing the insured may attempt to report the insurer’s representatives throughout breaks or earlier than or after the continuing. With out a skilled videographer, the insured’s consultant may also attempt to change the lighting on the recording or the angle of the recording to make the insurer’s representatives seem in an unfavorable gentle.
How will this new ruling change EUOs? Some insurers may be tempted to speed up the present development to have all EUOs performed remotely. However doing so would solely preclude insureds from video recording EUOs throughout breaks and earlier than and after the EUO (as a result of presumably the digicam could be turned off). Myasnyankin doesn’t prohibit insureds from video recording the insurance coverage firm’s non-questioning representatives who attend remotely until their cameras are turned off. Furthermore, conducting a distant EUO could also be much less efficient in some instances. For instance, in a declare the place the insurer is attempting to reconstruct the occasions of a automotive accident or different loss, it steadily helps to have the insured create diagrams throughout an in-person EUO. A reside EUO additionally prevents surreptitious teaching of the insured and permits the insurer to higher consider the insured’s credibility.
What to do? If an EUO is held in individual, insurers ought to perceive that it might be advisable for non-questioning firm representatives to seem remotely with their cameras turned off. The insurer ought to deal with the continuing with all of the professionalism of a proper deposition. And if the insurer has advance discover that the insured plans to videotape the EUO, the insurer ought to search to have its personal videorecording to make sure that the EUO occasions are correctly recorded.
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