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By: Robert A. Von Esch, Esq.
The Examination Under Oath (E.U.O) is a proactive and cost-effective tool to defeat false, fraudulent and exaggerated first party claims. It allows the insurance carrier to cross-examine the claimant before litigation while the facts are still fresh. Dramatic results, such as voluntary withdrawal of the claim, can occur when the E.U.O. is well-crafted. Some of the more important techniques include the following:
- Diligent preparation: The examining attorney should carefully review (and re-review) the claim file materials, the investigative reports and the underwriting file. Deceptive claimants tend to give information that leaves few footprints. Therefore, basic database research is advisable. This should include a Social Security track, a driver’s license history, a claims index and a search of NICB’s National Database System.
- Obtain all relevant documents: The claimant should be required to produce all relevant documents before the date set for the E.U.O. The claimant should be warned that if the documents are not produced, in advance, the E.U.O. will be continued. This gives the carrier’s attorney time to analyze the documents and to prepare cross-examination regarding contradictions between the claimant’s documents and the facts revealed by the insurer’s investigation.
- Commit the claimant to the truth: At the beginning of the E.U.O. the claimant must be given explicit instructions regarding the E.U.O. process. The claimant needs to acknowledge that any testimony given to misrepresent or conceal the facts could result in a denial of the claim. Fraud perpetrators frequently lead lives with multiple names, addresses and jobs which are often fabricated. The claimant should be made that aware lies or concealment of facts regarding any question may jeopardize coverage.
The preliminary commitment questions should be tailored to the facts of the case. For example, if the investigation suggests the claimant is using multiple names and addresses, the preliminary questioning should include something like the following:
Q. Mr. J if you should lie to me regarding any question I ask you, it could result in a denial of your claim. For example, questions concerning where you have lived or names you have used may not seem to you to have any bearing on your automobile theft claim. However, in false claims people tend to use multiple names and addresses. Therefore, if a claimant such as yourself should lie to me about names you have used or your addresses over the last five years, it could result in a denial of your claim. Do you understand that?
A. Yes.
This diffuses the claimant’s anticipated argument that his lies on such matters as his aliases and purported addresses are immaterial to the claim.
- Be respectful: The examiner should treat the insured with courtesy. Cordial, respectful questioning will put the insured at ease, increasing the chances he will open up.
- Listen attentively: Pay strict attention to each answer. Attempt to put yourself in the claimant’s shoes. A certain degree of empathy can go a long way toward helping the examiner understand what motivated the claimant (sometimes it isn’t mere financial gain.)
- Be observant: Maintain eye contact, noting any change in the claimant’s demeanor, body language and voice tone or any hesitation in answering. Occasionally, the examiner should bring such change in behavior to the claimant’s attention and ask the claimant if he has any doubt about his answer. This creates the impression the examiner already knows more about the claimant than the claimant is willing to disclose, thereby increasing the examiner’s control of the questioning.
- Maintain control of the situation: Successful results depend on whether the E.U.O. is controlled by the examiner or the claimant. The deceptive claimant will try to maintain control by giving only the information he thinks is needed to pay the claim; he will resist giving anything more. When pressed for more information he may become defiant or sarcastic or give evasive responses. Through such responses the claimant has unwittingly communicated that he feels vulnerable to that line of questioning. The skillful examiner will control the process by demanding a responsive answer. For example:
Q. Did you tell Dr. Jones you had neck pain when he examined you the first time?
A. That would be reasonable.
Q. While it may be reasonable, that doesn’t clearly answer my question. Did you, in fact, tell Dr. Jones you had neck pain when he examined you for the first time?
A. I forgot to tell him.
- Be creative: The examiner shouldn’t be predictable. Dynamic results usually don’t come from the rigid following of an outline of questions but from understanding the opportunities that present themselves through the answers given. The timing or sequencing of questions is important. Prior to the E.U.O., the examiner should determine the important questions that will confirm the facts or dismantle the claimant’s scenario.
Usually, the questions which go to the heart of the claim will not be asked early because it is more difficult for the claimant to present a rehearsed story to such questions after answering hours of preliminary questions. The questioning on the key issues becomes more intense as the claimant is confronted with the inconsistencies. The crisp, precise answers the dishonest claimant gave at the beginning deteriorate to rambling, inconsistent answers as he feels his chances of recovery ebbing away.
- Be thorough: The insurer must investigate all possible grounds which support the insured’s claim (Egan v. Mutual of Omaha Insurance Company 24 Cal . 3d 809 (1979)). Therefore, the questioning should be thorough. Unlike most depositions, during an E.U.O. the claimant should be given the opportunity to bring out any facts not covered by the examiner that would tend to support the insured. After all, it’s better to find out what the insured wants to say now than to first learn such during litigation.
- Be candid: Although it’s not always stated, the claimant wants to know the examiner’s opinion of his testimony. When appropriate, the examiner’s tone, demeanor and wording of the question communicates a great deal. Handled diplomatically such communication can lead to a prompt and accurate claim resolution. To this end, we find it is sometimes helpful to acquaint the claimant with the problems in his testimony. Elicit his assistance, such as in the following scenario, which occurred during one of our recent E.U.O.’s:
Q. Ms. M, now that we are nearly through with the E.U.O., I will need to inform your insurance carrier whether I believe your testimony is credible. ( Whereupon we detailed the blatant misrepresentations, contradictions and implausible aspects of her testimony). If you were in my position and someone told you this story would you believe it ?
A. I want out of this claim right now.
In conclusion, a thorough E.U.O. can quickly gather the facts necessary to accurately resolve the claim. This economical, pro-active method of case resolution is an excellent device to control litigation costs while getting the evidence needed for claim resolution.
For a complimentary training presentation contact Steve Byrne at (714) 544-7200.
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