California court says insurer must
allow claimant to record exams under oath
In a contentious claim scenario … settlement could be complicated
by conflicting interpretations of nonverbal behaviors during an examination under oath.
By Joseph S. Harrington, CPCU
Virtually every P-C policy includes a standard condition requiring insured claimants to participate in an “examination under oath (EUO)” of a claim if requested by the insurer. Failure to do so will forfeit coverage under the policy.
Insurers are required to share a transcript of the proceeding with the claimant but are generally under no restrictions regarding how it is recorded, whether by audio, video, an online meeting app, a court reporter, or some combination of these.
Well, the tables were turned in a recent case that’s gotten a lot of buzz in insurance legal circles.
In January 2024, a California appeals court ruled that a claimant was entitled to video record all the participants in an EUO, including attorneys and claim adjusters for the insurer. The insurer, Nationwide, had argued that the claimant should only be allowed to record his own testimony.[1]
One remarkable aspect of the case is the effort Nationwide put forth (to no avail) to avoid having its own representatives videotaped. The appellate court made short work of Nationwide’s claims that videotaping all participants would result in increased costs and delays. In this age of video-capable smartphones, the appeals court noted that such concerns would be de minimis, and that any costs in this case would be borne by the insured anyway.
The court further found that the claimant’s request fell within the purview of a California statute giving insureds the right to “record the examination proceedings in their entirety.”
Nonverbal clues
If there’s a valid concern behind Nationwide’s objections, it can be found in the appellate court’s reasoning regarding what is not said in an EUO.
The court wrote that “significantly, video records nonverbal conduct, such as eye-rolls or glares, which would not be captured by audio recordings or reporter’s transcripts … .” The court reasoned that allowing claimants to video all participants gave them the ability to document intimidation or harassment carried out by the actions or demeanor of insurer representatives.
For the most part, the ubiquitous video recording of daily life is a boon to insurers, who benefit from the ability of people to provide instant footage of incidents and damage. Also, if an insurer can record a claimant during an EUO, it seems only fair that the claimant be able to record the insurer.
But insurance is a business transacted through words, not “nonverbal conduct.” In a contentious claim scenario—the type that requires an EUO—settlement could be complicated by conflicting interpretations of nonverbal behaviors during an examination under oath.
In assessing the potential impact of the case from an insurer perspective, attorneys John Edson and Preston Bennett write that “the decision might have a chilling effect on adjuster participation in EUOs. It might also encourage policyholders attorneys to engage in obstructive or harassing conduct.”[2] (Policyholder attorneys can be present during EUOs and communicate with their clients, but they cannot directly participate in the proceeding to make motions or raise objections.)
Edson and Bennett add that giving an insured “free rein” to record all participants may discourage candid discussions that could lead to settlement.
Going remote
In light of the ruling, insurers in California and elsewhere may resort more frequently to the use of remote meeting apps for EUOs. Using online apps, claim adjusters and other carrier representatives can turn off their computer cameras, and claimants cannot insist that they turn them on.
There are shortcomings to conducting EUOs remotely for both claimants and insurers, however. Participants will be less able to demonstrate or illustrate an accident scenario through an online app than they could in an in-person setting. Also, participants could be coached by people outside the camera frame.
According to Edson and Bennett, in-person EUOs “allow the insurer to better evaluate the insured’s credibility.” Well, from now on, at least in California, insurers need to be able to demonstrate their own credibility when examining claimants under oath, because someone may be watching and recording.
[1] Myasnyankin v. Nationwide Mut. Ins. Co., 99 Cal. App. 5th 283, 317 Cal. Rptr. 3d 744 (2024).
[2] John Edson and Preston Bennett, “How Calif. Video Recording Ruling May Affect Insured Exams,” March 13, 2024; accessed at https://www.sheppardmullin.com/media/publication/2185_Law360%20-%20How%20Calif.%20Video%20Recording%20Ruling%20May%20Affect%20Insured%20Exams.pdf
The author
Joseph S. Harrington, CPCU, is an independent business writer specializing in property and casualty insurance coverages and operations. For 21 years, Joe was the communications director for the American Association of Insurance Services (AAIS), a P-C advisory organization. Prior to that, Joe worked in journalism and as a reporter and editor in financial services.
