Navigating the complexities of insurance law in appellate courts requires the ability to communicate effectively with judges and staff attorneys who may be unfamiliar with insurance law.
Practice Pointer – Top 10 Tips for Examinations Under Oath
By Marjorie Nicol*
- Check the policy language to see who you can examine. Some policies allow the insurer to examine only insureds while others allow the insurer to examine anyone seeking coverage (e.g. a PIP recipient).
- Check the policy to see if there are any other guidelines for examinations. Some policies state, for example, that no one else can attend the examination.
- If the witness has counsel, allow him or her to attend the examination, but remind him or her objections are inappropriate, as the examination is not a deposition.
- Notice the examination just as you would a deposition and engage a court reporter.
- Serve the notice by regular mail, email, or overnight mail to the witness or on counsel if s/he has counsel.
- Do not subpoena the witness, as the examination is not being taken under the auspices of the court.
- You may include a list of requested documents with the notice of examination, although the right to such documents may not necessarily be enforced by a court.
- Sometimes noticing an examination will trigger a lawsuit. Even so, proceed with the examination, a deposition is not a substitute for an examination under oath.
- If a lawsuit is filed after noticing an examination, seek an abatement of the lawsuit under the policy’s “Legal Action Against Us” provision, which usually renders the examination a precondition to suit.
- Conduct a broad examination in the event that a court in later litigation may limit the ability to depose the same witness.
*Marjorie is a Partner in the Houston Office of Shackelford, McKinley & Norton, LLP, specializing in insurance coverage litigation on the carrier side.