Quarterly Newsletter Fall 2018
The majority of automobile insurance policies contain a clause providing that the insurer may require the insured to submit to an examination under oath (“EUO”) to assist with the insurer’s investigation of the claim. Many policies include the EUO provision in the conditions section of the policy and expressly make the insured’s attendance at the EUO a condition of coverage. An insured’s decision to not attend the EUO may be sufficient, by itself, to cause denial of a claim for failure to satisfy a condition precedent to coverage. Oregon is the most recent jurisdiction to weigh in on a related issue, which occurs when a statute requires an insurer take some action within a certain time period, yet the insured has failed to attend the EUO at the request of the insurer.
In Moore v. Allstate Ins. Co., 293 Or. App. 690 (2018), the plaintiff was a motorist that filed an action to recover personal injury protection (“PIP”) benefits after she was injured in a motor vehicle accident. The plaintiff told Allstate (PIP insurer) that there was someone else inside the car at the time of the accident that was also injured, but Allstate suspected that she was alone and requested an EUO to further investigate. Plaintiff refused and contended that Allstate breached its duty to pay the PIP benefits promptly as required by Oregon statute. She further contended that, as a result of Allstate’s breach, she was not obligated to submit to the EUO. She then sued Allstate for breach of the insurance contract. Allstate moved for summary judgment, arguing that it was not required to pay PIP benefits until she submitted to the EUO. Plaintiff argued that, under Oregon statute ORS 742.524(1)(a), Allstate was required to pay her PIP benefits within 60 days of receiving her medical bills, regardless of whether she attended the EUO. The trial court granted Allstate’s motion on the grounds that plaintiff ’s refusal to submit to the EUO was not excused because Allstate did not materially breach the insurance policy by failing to pay PIP benefits within 60 days.