"Examinations under oath" and "recorded statements" are not the same thing. A recorded statement is usually taken within a few hours or days after the loss, and is typically taken by an adjuster. The questions asked are usually standard in nature, often asked verbatim from a written form, and the whole process customarily takes only twenty minutes or so. The statements are sometimes audio recorded by the adjuster, but sometimes the adjuster just takes notes. Examinations under oath, on the other hand, are much more formal and detailed in nature, and are almost always taken by an attorney engaged by the insurance company. The questions and answers are transcribed by a court reporter, and the insured is typically required to sign the transcript. Another distinction is that an examination under oath is literally "under oath," meaning that the insured legally swears or affirms that his or her answers are truthful. A recorded statement is not a substitute for an examination under oath, meaning the insurance company gets to ask the same questions at least twice.
An issue I often run across is the insured that can’t remember the questions presented and the answers provided during the recorded statement. Although such a lack of memory may be understandable due to the traumatic nature of major losses, such as a house fire, consumers in Tennessee may not be entitled to receive a copy of their recorded statement before submitting to an examination under oath. In fact, the Tennessee Court of Appeals noted in a 2004 unreported decision that "the contractual right of the insurer to compel the insured to submit to a statement under oath concerning a fire loss is unconditional," impliedly holding that an insured has no right to obtain copies of his or her recorded statement prior to an examination under oath. Jones v. Tenn. Farmers. Mut. Ins. Co., 2004 WL 170359 (Tenn. Ct. App. Jan. 27, 2004). For you lawyers out there, the insured’s attorney in the Jones case engaged in some "outside the box" tactical maneuvering, and filed a pre-suit petition under Rule 27 to take the depositions of the insurer’s employees who took the insured’s statements. That petition was granted by the trial court, but the Court of Appeals reversed, holding that the petition was purely tactical in nature and was not designed to perpetuate testimony pursuant to the spirit of Rule 27, but rather was being used as a discovery tool.
A few thoughts about the impact of this decision. First of all, be honest when answering the insurance company’s questions. If insureds will just do that, then the risk of giving conflicting testimony goes down significantly. Second, bring an audio recorder with you and record the initial "recorded statement" yourself. Although the adjuster probably won’t like it, I don’t think there is much he or she can do about it. And finally, if you don’t have a tape recorder handy, just ask the adjuster to confirm, on the record, that the insurance company will promptly provide a transcript of the statement upon request. If the adjuster agrees, then the insurance company has arguably waived the right to take an EUO without first providing a copy of the recorded statement. If the adjuster refuses, well . . . I guess you better find that recorder.