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A video explaining why the Fifth Amendment is of no use to an insurer bad faith complainant



Watch the full video at https://youtu.be/gMbXpqCxV6I Tu 19199009002. The Fifth Amendment to the US Constitution protects a person from being forced to testify in a way that could criminalize him or her and prosecute the witness. However, it is not a defense, not a weapon that can be used against a defendant in civil law. Since civil litigation is initiated voluntarily, testimony in a civil action brought by a plaintiff is not a compulsion to self-incriminate as the appellant can protect his privilege by rejecting the action.

Fremont Indemnity Co. v. Superior Court of Orange County 137 Cal. App. 3d 554, 187 Cal. Rptr. 137 (Cal.App.Dist.4 11/19/1982), plaintiff owned a restaurant. The defendant, Fremont, issued an insurance policy that insured against its loss in the event of a fire. The insurance included an exclusion according to which the insurer would be released from liability for the insurance if it was shown that the insured's fire chair caused the loss.

After the fire, a criminal investigation was carried out into the origin of the fire and the plaintiff came under suspicion. As a result, the defendant refused to pay the plaintiff's claims. As a result, the appellant brought an action against his insurance company.

Before his planned depositary lawyer for the plaintiff, the lawyer informed the defendant that the plaintiff would not appear for his deposit because he had been charged with arson and therefore asserted his constitutional privilege against himself-

Since it was the plaintiff who claimed the privilege with respect to his his own conduct which was decisive for a cover exclusion included in the actual fire insurance policy he requested reimbursement, the Court of Appeal issued a mandatory letter of intent to the Orange County Superior Court instructing to compel the testimony, and if the appellant continued to refuse to appear for deposit ordered or refused to provide the evidence already ordered, the Court of Appeal instructed the trial to dismiss the appellant's document. He continued to refuse and his case against his insurance company was rejected.

Fremon The T-Court analyzed the issue by examining discovery disputes where the initiation of the dispute necessarily revoked the alleged privilege. (See, e.g., Newson v. City of Oakland (1

974) 37 Cal. App. 3d 1050 [112 Cal. Rptr. 890] [plaintiff asserting claim for lost wages compelled to disclose his failure to file income tax returns]; City & County of SF v. Superior Court (1951) 37 Cal. 2d 227 [231 P.2d 26, 25 A.L.R.2d 1418] [the physician-patient privilege was waived when the plaintiff placed his physical condition in issue by filing an action for personal injuries]; Wilson v. Superior Court (1976) 63 Cal. App. 3d 825 [134 Cal. Rptr. 130] [by initiating an action against her accountant for malpractice with respect to tax advice she received, the plaintiff tendered issues involving the existence and content of her income tax returns and was precluded from asserting the privileged status of a taxpayer’s copies of income tax returns].)


© 2020 – Barry Zalma

Barry Zalma , Esq., CFE, now limits its practice to employment as an insurance consultant specializing in insurance coverage, insurance claims handling, bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance-related disputes. He practiced law in California for more than 44 years as an insurance coverage and attorney management attorney and more than 52 years in the insurance industry. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine / ACE Legend Award.

For the past 52 years, Barry Zalma has devoted his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to enable insurance companies and their claims staff to become professional insurance claims.

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