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Case Law Wednesday – Who has to be produced at an Examination under Oath?




Insurance policies typically contain post loss obligations that the insured must abide by before filing a lawsuit. Post loss obligations are conditions that the insured must perform after they have experienced a damage. These obligations typically include examination under oaths of the insureds and the public adjuster. An examination under oath is a formal proceeding where an insured is questioned by an insurance company representative under oath. During the examination under oath the insured will be asked questions regarding their current loss.

In Avatar v. Cecilia Castillo and Jorge Guillen [1], the insureds filed an insurance claim when a pipe leak caused water damage to their home. The insureds subsequently hired a handyman to repair the pipe and a water restoration company to dry out their home. The insureds then submitted a sworn proof of loss with the repair invoices. In turn, the Insurance Company, Avatar, requested that the insureds produce themselves, the handyman, and the water restoration company’s employees for an EUO pursuant to the insurance policy. The insureds’ policy stated that “you, your agents, your representatives, including any public adjuster engaged on your behalf, and any and all insureds must submit to EUOs.”

The Court explained that the policy did not define the term agent or representative, but that Black’s dictionary defined agent and representative as one who is authorized to act for or in place of another. On appeal, the Fourth Court of Appeals stated that the insureds’ handyman and water restoration employees were not the insureds’ agents or representatives because nothing in the recorded indicated that either individuals were authorized to act for or in place of the insureds. Instead, the handyman and the water restoration employees simply performed repairs at the property.

The Court concluded that the insured only had to produce individuals that were the insureds’ “agent” or “representatives,” thus the insureds did not have to produce the handyman and water restoration employees because they did not fall within Black’s dictionary definition of agent or representatives. The policy language of your insurance policy is crucial before and during an insurance claim. It is critical that you read your coverage and exclusions carefully and review them every year to ensure that coverage is appropriate for the circumstances.

Additionally, if as an insured you have any doubts as to the insurance claim process or who should be produced for an examination under oath, do not hesitate to contact an attorney for professional assistance.

If you need assistance with your insurance claim, schedule a consultation with the experienced attorneys at Alvarez Law Group today. Call us at (786) 620-2820 or email assistant@alvarez.legal to schedule a consultation.

[1] Avatar Property & Casualty Insurance Company v. Cecilia Castillo and Jorge Guillen, 4D18-3154 (Fla. 4th DCA 2020)

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