Examination Under Oath And 5th Amendment

A frequent phone call to insurance law lawyers is someone asking about participating in an examination under oath (EUO). Most people understand what taking the 5th means.  It refers to our right to not be compelled to say anything that may be self-incriminating.  It usually is discussed in the context of a criminal proceeding or investigation.  However, the privilege against self-incrimination also applies in civil proceedings.  Just because you are in a civil case rather than a criminal case does not require a person to surrender this right. In an insurance situation, an insurance investigation is contractual in nature.  Almost all insurance policies are going to contain a cooperation clause that requires the insured to cooperate with the investigation of a claim for which the insured is seeking policy benefits.  Courts in interpreting the cooperation clause have universally found that the insured cannot use the 5th Amendment to avoid cooperating…

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