4 ADJUSTINGTODAY.COM • A party in a civil case can invoke his or her Fifth Amendment right against self-incrimination to prevent the disclosure of information that could be used against him or her in a criminal proceeding.16 Similarly, an insured may invoke the Fifth Amendment during the EUO.17 Unfortunately, most courts have concluded that the assertion of this constitutional right will not insulate an insured from the obligation to submit to an EUO and to answer material questions during the EUO, characterizing it as an impermissible attempt to utilize the right not only as a shield, but also as a sword.18 Thus, in deciding whether to submit to an EUO when he or she is a suspect in a criminal prosecution, an insured may have to choose between possibly breaching the policy and forfeiting benefits thereunder or revealing critical information to state or federal authorities which could be used against him or her. If, however, the insurer has been requested to turn over to the authorities information received from the insured pursuant to an arson reporting immunity act, then the insured’s exercise of his or her Fifth Amendment right may not be a breach of the EUO requirement.19 • Absent good cause, a party deponent is rarely required to give more than one deposition.20 On the contrary, most property insurance policies require an insured to submit to an EUO as often as is “reasonably required.”21 The “reasonably required” language describes how often the insurer can make requests for an EUO, and not the subject, topic, and scope of the EUO on the one hand, or the length, frequency, or time of the EUO on the other hand. In other words, the number or frequency of EUOs requested must be reasonable under the circumstances.22 • A deponent is not required to sign the deposition transcript.23 Conversely, property insurance policies normally require an insured to read and to sign a copy of the EUO transcript to ensure the accuracy of the testimony.24 Absent a request by the insurer to do so, the insured’s failure to sign or delay in signing the transcript will not result in a forfeiture of his or her rights under the policy unless the insurer is prejudiced.25 If an insured’s only omission is failing to sign the transcript, then the submission to an EUO may constitute substantial compliance with the policy requirement.26 • The submission by an insured to an EUO does not deprive the insurer of the right to a deposition.27 Even though insurers get a second bite at the testimony apple, a deposition should not duplicate the EUO. It should be limited to those areas not covered in the EUO.28 Who Must Submit to an EUO? Property insurance policies typically require “the named insured,”“the insured,”“an insured,” or “any insured” to submit to an EUO. All persons who fall within the policy’s definition of these terms must comply with the EUO requirement, which in a homeowner’s policy may be limited to spouses.29 … the insurer’s failure to provide information concerning its investigation, including copies of previous statements, is not an excuse for the insured’s non-compliance with the EUO requirement.
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