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Thursday, February 29, 2024

Can Policyholders Videotape the Examination Beneath Oath?


Policyholders in California have a proper to videotape the examination beneath oath. Certainly, nothing within the insurance coverage coverage prevents the policyholder from videotaping the insurance coverage firm representatives in the course of the examination beneath oath. Why would any insurer performing in good religion be afraid of its representatives being videotaped throughout an examination beneath oath? If the insurance coverage firm can videotape the policyholder throughout an examination beneath oath, why can’t the policyholder do the identical to the insurer?

Nationwide Insurance coverage Firm objected to its claims investigators being videotaped throughout an examination beneath oath. A California appellate court docket wouldn’t have any of it and additional famous the historical past and want for policyholder client safety in the course of the claims course of:1

Current authorized protections for insurance coverage policyholders proved to be insufficient after the Northridge earthquake. The general public requires extra safeguards in opposition to unfair declare settlement practices by insurance coverage firms. It’s the intent of the Legislature that the provisions of this act add fundamental client protections to these presently set forth within the Insurance coverage Code and supporting rules.

Because the invoice’s creator defined, ‘Current legislation must be modernized. It permits insurers to make use of attorneys to delay declare settlements, conduct fishing expeditions, intimidate and harass harmless shoppers whereas ostensibly investigating their claims, however supplies few balancing protections for claimants.’… Different supporters of the invoice equally contended ‘that the present EUO course of was enacted in 1949 and provides ‘just about limitless investigation rights to insurance coverage firms’ with little client safety.’ …’The creator launched this invoice to deal with issues by property homeowners who had been subjected to abuses by insurance coverage firms in the course of the insurance coverage declare course of, together with people and victims of the 1991 Oakland firestorm and the 1994 Northridge earthquake. [T]he invoice establishes fundamental due course of rights for insureds who’re subjected to EUOs,’ amongst different protections…Thus, the laws was supposed to not solely improve the method due an insured but in addition present client safety provisions, reminiscent of the proper to document.

To make sure, the legislative historical past doesn’t explicitly deal with whether or not part 2071.1(a)(4) encompasses the proper to video document the insurer’s representatives. Nonetheless, it demonstrates an categorical and unequivocal intent to guard insureds from harassment in EUO proceedings, and this objective is served by granting insureds such a proper. Considerably, video data nonverbal conduct, reminiscent of eye-rolls or glares, which might not be captured by audio recordings or reporter’s transcripts…As well as, the data that an individual is being video recorded could immediate that particular person to switch their conduct in a constructive method. (Cf. ibid.

.) ‘ ‘[C]ivil statutes for the safety of the general public are, typically, broadly construed in favor of that protecting objective.’ ‘ (Pineda v. Williams-Sonoma Shops, Inc. (2011) 51 Cal.4th 524, 530, 120 Cal.Rptr.3d 531, 246 P.3d 612.) Granting insureds the proper to document the insurer’s representatives furthers the Legislature’s objective to guard insurance coverage shoppers from harassment throughout EUOs. For that reason, we reject Nationwide’s argument that video recording an insurer’s representatives is unreasonable.

As well as, the legislative historical past reveals the Legislature expanded the scope of an insured’s proper to document EUOs in the course of the modification course of. As initially launched, the invoice amended part 2071, which units forth the usual type of fireplace insurance coverage coverage, to afford an insured topic to an EUO the proper to ‘tape-record the examination.’ Subsequently, the invoice was amended each to use the EUO protections extra broadly to all property insurance coverage insurance policies, and to broaden the recording proper to embody the proper to ‘document the examination proceedings of their entirety.’ …This enlargement of the proper to document—from ‘tape-record[ing]’ to ‘document[ing]’ and, extra considerably for our functions, from ‘the examination’ to ‘the examination proceedings of their entirety’—reveals a legislative intent that the insured’s proper to document the EUO proceedings be complete. We see no foundation to exclude from this broadly phrased and deliberately expanded proper the proper to video document the insurer’s representatives.

… Nationwide additionally asserts there isn’t a have to video document the insurer’s contributors as a result of the questions requested by the insurer’s consultant shall be captured by the reporter’s transcript or on the audio portion of any video recording of the insured. As we’ve got already mentioned above, these strategies don’t seize nonverbal conduct, which can be intimidating or harassing.

Harassment and intimidation by insurance coverage firms, and particularly their “canine on a leash” attorneys, isn’t correct.

A giant shout-out goes to Amy Bach and United Policyholders, who not solely efficiently fought for these policyholder safety legal guidelines over 25 years in the past but in addition filed an amicus transient on this case.

When you’ve got basic questions on examinations beneath oath, use the search operate on this weblog. When you’ve got a selected query about an upcoming examination, please contact a Merlin Legislation Group lawyer for preparation and assist. Policyholders ought to keep in mind that the insurance coverage firm is often taking the examination beneath oath to assemble details to disclaim or restrict your declare. These are vital claims proceedings for which policyholders want certified authorized illustration and preparation.

Thought For The Day

All representatives of your insurance coverage firm are legally required to inform you the reality. This consists of in-person conversations and all communication by cellphone, letters, emails and all promoting and printed supplies.

—United Policyholders


1 Myasnyankin v. Nationwide Mut. Ins. Co., — Cal.Rptr.3d — , 2024 WL 340287, (Cal. Ct. App. Jan. 30, 2024).

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