Examinations under oath are important for recovery. A reasonable presentation of relevant documents that are part of a cooperative investigation is also important. Failure to provide a survey under oath and documents is a one-way street to help an insurer refuse recovery.
A recent case in Georgia1 judged:
[B]because the plaintiffs did not comply with the conditions for bringing a lawsuit under the simple terms of the policy – namely the conditions for cooperating with State Farm’s investigation by providing certain documents (sworn or otherwise) and going to an investigation under oath – they violated the terms of the policy . The defendant has the right to receive a verdict on the plaintiff̵7;s breach of contract claim.
The Court presented a long-standing precedent in the case of Georgia in the matter:
Georgia’s courts have ruled that insurance policies that require an insured person to cooperate with an insurer’s investigation – for example by submitting requested records or going to an investigation under oath – are valid precedents for recovery. Hall v. Liberty Mut. Fire Ins. Co.2009 WL 235640 … (11th Cir. 3 Feb. 2009) (‘Under Georgia law, an insurer may require its insured to comply with the terms of his insurance and cooperate with the insurer’s investigation, as a condition of recovery’) (quotes KHD Deutz from Am. Corp. v. Utica Mut. Ins. Co.Inc. 469 SE2d 336, 339 (Ga. Ct. App. 1996)). See also Halcome v. Cincinnati Ins. Co.334 SE2d 155, 157 (Ga. 1985) (on certified question, finding that the plaintiff had breached his insurance contract by failing and refusing to provide material information related to their income, as requested by the insurance company during the investigation); Youhoing2010 WL 11500940 … (noting that the plaintiff’s failure to provide material financial documents and failure to appear for oral examination under oath before the action was brought constituted a “total failure to comply with the policy provisions” and thus precluded recovery); Farmers396 F. Supp. 2d of 1382-83 (it is found that the plaintiff violated the condition when she refused to provide requested financial documents in connection with fire); Roberts2011 WL 6215700 … (it is found that the plaintiff violated the insurance contract and failed to fulfill the precedent conditions when she failed to provide bank documents, debt statements, expense documents in connection with a fire in the home).
Cooperation is not a one-way street, and the insurance company’s requirements must be reasonable, as I noted in California policyholders need to work with their insurers after a property loss. What does it mean? But in that post I warned:
Cooperation may not mean “Slavic obedience”. But when requests to cooperate under the policy are made and the requests are “to jump” and my client wants to be paid for a legitimate claim, I often ask “how high?” This is because it is a no-win situation to refuse to provide documents that a policyholder has.
Many stupid advocates try to ignore their ego and tell their client to “not cooperate” and that all this is an “invasion of privacy”, should simply tell their customers how much malpractice insurance they have because it is an “all to” lose “nothing to win proposals for the policyholder. In addition to damages in bad faith, which few lawyers know how to prosecute, what is the insurance company afraid of from a policyholder acting belligerent and not handing over any relevant documents?
In this particular case, the policyholders simply did not show up for the investigation under oath and did not provide any documents. Georgia’s Federal District Court recognized that there could be a justifiable reason to excuse non-production and non-production under Georgia law:
Failure to provide the requested material documents may constitute a breach of a precedent-setting condition, if the evidence shows that an insured has cooperated to some extent or provides[d] another explanation [her] In the event of non-compliance, a question of fact is submitted for a decision by the jury. ‘ Diamonds & Denims, Inc. v. First of Georgia Ins. Co.417 SE2d 440, 441-42 (Ga. Ct. App. 1992). An insurer’s “failure to act with care and good faith to secure the necessary information” may also preclude a summary assessment for the insurer. Id. (to establish that the question of fact existed where evidence showed that the requested registers were destroyed in the fire, that the insurer did not request documents with any specificity and that other requested registers were in the possession of third parties).
What was the policyholder’s apology in this case? Policyholders’ “primary motivation” is that State Farm did not give them enough time to comply. ” The Court rejected the proposal and noted:
However, there is no evidence that the plaintiffs requested additional time from State Farm to provide documents or ever attempted to rebook the investigations under oath, which State Farm proposed and offered.
One lesson of the case is to ask for more time to follow if necessary. The second is to provide what information and documentation you have.
As a further warning to policyholders in this situation that they do not hold documents, the court stated that:
[E]When documents are not in the plaintiff’s possession, a plaintiff has a policy obligation to “cooperate with the defendant to trace those documents.” Youhoing, 2010 WL 11500940 (grant summary judgment to the insurer where the plaintiff completely failed to present documents requested by the defendant because they were irrelevant or in her husband’s possession); see also Hall v. Liberty Mut. Fire Ins. Co.2009 WL 235640 … (11th Cir. 2009) (‘When documents are unavailable, the insured has an obligation to cooperate with the insurer to obtain or reconstruct the information needed from other available sources’) “
Cooperation is a two-way street. It is important not to lose the insurance benefits because a policyholder does not cooperate by not appearing for an investigation under oath or by not providing the requested documents.
The only thing that will redeem humanity is cooperation.
– Bertrand Russell
1 Raymond v. State Farm Fire & Cas. Co.No. 1:20-cv-04317 (ND Ga. July 1, 2022).