I cannot count the number of times I have had an insured’s lawyer misunderstand the difference between these two proceedings. Depositions and examinations under oath are different activities. Cases recognize that “depositions and examinations under oath serve different purposes.” Nationwide Ins. Co. v. Nilsen, 745 So. 2d 264, 268 (Ala. 1999); accord Goldman v. State Farm Fire Gen. Ins. Co., 660 So. 2d 300, 305 (Fla. 4th DCA 1995). The Supreme Court of Alabama explained:
[A]n examination under oath is a part of the claims investigation process. In contrast, a deposition is not part of the claims investigation process; it is designed to facilitate the gathering of information once an insured has denied the insured’s claim.
Nationwide Ins. Co., 745 So. 2d 269; accord Goldman, 660 So. 2d 305 (listing numerous distinctions between EUO’s and depositions, one of which explains that “examinations under oath are taken before litigation to augment the insurer’s investigation of the claim while a deposition is not part of the claim process”); see also Archie v. State Farm Fire & Cas. Co., 813 F. Supp. 1208, 1213 (S.D. Miss. 1992) (holding that depositions are different from examinations under oath); Craft v. Western Mut. Ins. Co., No. E030318, 2002 WL 225947, at *3 (Cal. Ct. App. Feb. 14, 2002) (“A deposition is not the examination under oath which the policy required.”)
In Tennessee, an insured may have a lawyer present at the Examination Under Oath, but the lawyer cannot participate in the Examination, either by asking questions or lodging objections. See e.g. Shelter Ins. Companies v. Spence 656 S.W.2d 36, 38 (Tenn.App.,1983)
Also, keep in mind that the mere filing of suit may not terminate the carrier’s right to demand an Examination Under Oath. There are many cases, mainly from other jurisdictions, that allow a carrier to take an Examination Under Oath even after litigation has been filed. Of course, it depends upon the status of the case, but even in those post-litigation situations, an attorney for the insured may not be able to participate.