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Top Ten Tips for Examinations Under Oath

Marjorie C Nicol

Top Ten Tips for Examinations Under Oath
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10) 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 (a PIP recipient).

9) 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.

8) If the witness has counsel, allow him or her to attend the examination, but remind the witness that objections are inappropriate, as the examination is not a deposition.

7) Notice the examination just as you would a deposition.

6) Serve the notice by regular mail, email, or overnight mail to the witness or counsel if the witness has counsel.

5) Do not subpoena the witness, as the examination is not being taken under the auspices of the court.

4) 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.

3) Sometimes noticing an examination will trigger a lawsuit. Even so, proceed with the examination; a deposition is not a substitute for a deposition.

2) 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 pre-condition to suit.

1) Conduct a broad examination in case a court in later litigation limits the ability to depose the same witness.