Recorded statements and examinations under oath

A recorded statement is an informal, unsworn interview, usually by phone, in which the adjuster asks you to describe the loss while a recorder runs. An examination under oath (EUO) is a formal, sworn question-and-answer session, usually with a court reporter and often with an attorney for the insurer, that your policy lets the insurer require. Both are part of your duty to cooperate. The first is routine; the second is unusual and is a signal that the insurer has questions it wants answered on the record.

This guide describes the ISO homeowners form (HO 00 03 05 11, the 2011 edition hosted by the Maine Bureau of Insurance). Your insurer's wording and your state's rules control, so read the "Duties After Loss" condition in your own policy.

What the policy actually requires

The HO-3 does not mention recorded statements. It says that after a loss you must give prompt notice, protect the property, "cooperate with us in the investigation of a claim," prepare an inventory, and, "as often as we reasonably require," show the damaged property, provide records and documents the insurer requests and "submit to examination under oath, while not in the presence of another 'insured', and sign the same." It also requires a signed, sworn proof of loss within 60 days after the insurer asks for one. The insurer's obligation to provide coverage lapses if your failure to comply with these duties is prejudicial to it.

Some insurers add wording of their own, including an endorsement that lists a recorded statement among your duties. Look at your policy and any state amendatory endorsement before you decide how to respond.

Florida's Office of the Insurance Consumer Advocate, for example, tells policyholders that under their policy "you may be required to participate in an examination under oath or cooperate during an investigation of a claim" (Florida Insurance Consumer Advocate). That page does not mention recorded statements, and neither does the HO-3, so the general duty to cooperate does the work.

Recorded statement versus EUO

If you are asked for a recorded statement

Adjusters commonly take recorded statements in ordinary claims. Still, treat the request as a real step in the claim.

1. Ask what it is for and what it will cover. An adjuster should be able to say that the statement is about the cause and timeline of the loss.
2. Choose the time. You do not have to give it in the first shaky hour after a fire or storm. Ask for a time when you have your documents, a clear head and, if you want one, a representative.
3. Have your facts in front of you: the date and time you discovered the damage, when it was last in good condition, who was present, when you called the insurer, and any repairs already made.
4. Answer what is asked, and say when you do not know. "I don't remember" and "I'd need to check" are acceptable answers. Guessing at dates, amounts or causes is how a statement later looks inconsistent.
5. Tell the truth about prior damage and prior claims. Your policy's concealment or fraud condition lets the insurer void coverage if an insured intentionally conceals or misrepresents a material fact or makes false statements, before or after a loss.
6. Ask for a copy of the recording or transcript. Whether you are entitled to one varies by state and by insurer. Ask in writing, and keep your own notes of the call in your claim log (see documenting damage: photos, video and receipts).
7. Consider recording it yourself. Some states require every party's consent to record a call, so say at the start that you are recording, as you expect the adjuster to do.

You can ask to submit written answers, or to have a public adjuster or attorney on the line. Insurers differ in whether they agree. Declining outright without saying why can prompt a formal EUO request.

Why an insurer calls for an EUO

An EUO is a tool for investigating a claim, and it is used when the insurer thinks written requests have not produced what it needs. An attorney who defends insurers described the common triggers in a 2020 presentation to the Louisiana Department of Insurance's convention: suspected fraud is the most common reason, with contested issues, inconsistencies, missing documentation, possible exaggeration and a policyholder who does not respond to written requests also on the list (Louisiana Department of Insurance, 2020 convention). That is one side's view, and the same deck frames EUOs as underused. But it fits what adjusters commonly say: an EUO is rare in a plain wind or water claim and more likely after a theft, a fire with questions about cause, a large contents claim, or a claim made soon after a policy began or during financial trouble.

The same presentation points to the U.S. Supreme Court's decision in Claflin v. Commonwealth Insurance Co. (1884) as an early case recognizing that an insurer may require sworn answers and documents from the insured.

How an EUO works

The request. It should arrive in writing, quote the policy condition, name a date, time and place, and list the records to bring. Read it for deadlines and for the list of documents. Tax returns, bank statements, receipts, phone records and prior claim files are commonly requested for theft and fire losses.

Scheduling. The policy says the examination is "as often as we reasonably require," so the time and place must be reasonable. If the date does not work, reply in writing at once with alternatives rather than ignoring it. A no-show that you did not explain is the worst possible position.

Who attends. Each insured is examined separately, outside the presence of the other insureds, such as a spouse. The presentation to the Louisiana regulators says the insured may bring an attorney and that the session is before a court reporter, but it also takes the insurer's position that the attorney cannot object or instruct the insured not to answer. That is one side's reading; what an attorney may do during the questioning depends on the policy, state law and the insurer's own rules, so ask in advance, in writing.

The session. Expect questions on background, ownership, finances, the history of the house, prior claims, the timeline of the loss and each item in your claim. It can run for hours. The transcript is typed afterward, and the policy says the answers must be signed. Ask to read the transcript for typing errors before you sign, and ask for a copy.

Documents. If you are asked to produce records, deliver them by the stated date and keep a copy of what you hand over, along with a list. Missing records should be explained in writing, not skipped.

Hypothetical example

Say a couple reports $41,000 of jewelry and electronics stolen from a house they had listed for sale. The adjuster has trouble verifying the purchase dates, the police report was filed days later, and the two accounts of when they last saw the items differ slightly. The insurer sends a letter reserving its rights and requesting an EUO and bank statements. The couple hires an attorney, gathers receipts and appraisals, and each sits for a separate session. Months later the insurer pays, denies part of the claim or opens a formal fraud investigation; the EUO does not decide that by itself. It gives everyone a sworn record. A reservation of rights letter is common here, and reservation of rights explains what it does and does not mean.

Refusing or ignoring the request

Standard policy language makes full compliance with the Section I terms a condition of suing the insurer, and the HO-3 relieves the insurer of its coverage duty when your noncompliance prejudices it. The Louisiana presentation notes that courts split on the point: some treat a failure to sit for an EUO as grounds to dismiss a suit, and others require the insurer to show prejudice. Do not rely on a prejudice argument you have not discussed with a lawyer. If you have a valid reason for objecting to a request, such as its timing, its scope or a demand for documents unrelated to the loss, say so in writing and propose an alternative.

When to bring in help

• Get an attorney for any EUO request, especially one that follows a reservation of rights or involves a fire, theft or large claim. Ask about the fee structure in writing before you hire anyone.
• A public adjuster can help assemble the claim, but a licensed public adjuster is not a lawyer and cannot give you legal advice about a sworn examination. See public adjusters: when to hire one and what they cost.
• Your state insurance department can tell you which rules apply and takes complaints about claim handling. how to file a complaint with your state insurance department explains how. In California, for example, an insurer must provide copies of claim-related documents such as estimates and scopes of loss within 15 calendar days of a request (Cal. Ins. Code 2071); other states have different rules.

For the larger picture, the policy duties are in policy conditions: your duties under a homeowners policy, and homeowners insurance fraud: what it is and how it's caught explains how fraud is investigated and what the policy's fraud clause does.

Key takeaways

• A recorded statement is an unsworn interview that comes from the duty to cooperate; an EUO is a sworn session the HO-3 expressly allows the insurer to require.
• Prepare for either one: gather dates and documents, answer only what you know, never guess, and tell the truth about prior damage and claims.
• An EUO request is a sign that the insurer has questions. Reply in writing, propose a reasonable time and place, and get an attorney.
• Refusing or ignoring a request risks a breach-of-condition defense, and courts disagree on whether the insurer must show it was harmed.
• Ask for a copy of any recording or transcript and keep your own notes; your state's rules on claim documents and your insurance department can fill in what your policy leaves out.