"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.  

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Photo of Brandon McWherter Brandon McWherter

J. Brandon McWherter is a Nashville-based lawyer and member of McWherter Scott & Bobbitt PLC, which has offices across the State of Tennessee and elsewhere across the Southeast.  Licensed in Tennessee, Arkansas, and Mississippi, he has dedicated his practice to assisting insurance…

J. Brandon McWherter is a Nashville-based lawyer and member of McWherter Scott & Bobbitt PLC, which has offices across the State of Tennessee and elsewhere across the Southeast.  Licensed in Tennessee, Arkansas, and Mississippi, he has dedicated his practice to assisting insurance policyholders with their claims against insurance companies, including claims for bad faith.

For well over a decade, McWherter’s practice has been focused almost exclusively on the prosecution of first party property insurance claims for policyholders.  His interest in this area of the law first started around 2003 when a tornado struck Jackson, Tennessee, where he lived and worked at the time.  Since then, McWherter has represented hundreds or thousands of policyholders whose claims have been underpaid or denied.  He advises and advocates for owners of commercial properties, industrial facilities, residential properties, churches, business owners, and other insurance policyholders.

Since he started counting in 2013, McWherter has assisted his clients in obtaining well in excess of One Hundred Million Dollars ($100,000,000) in settlements, awards, and jury verdicts against insurance companies.

In 2018, McWherter was inducted as a fellow in the American College of Coverage Counsel, which is an invitation-only organization designed to facilitate and encourage the association of lawyers who are distinguished for their skill, experience, and high standards of professional and ethical conduct in the practice or teaching of insurance coverage and extra-contractual law and who are dedicated to excellence in this area of practice.

McWherter has been featured as a “Super Lawyer” or “Rising Star” by SuperLawyers every year since 2010.  Since 2013, he has been selected each year  for inclusion in U.S News and World Reports’ The Best Lawyers in America in the field of Insurance Law.  He also enjoys an AV Preeminent ranking by Martindale-Hubbell for legal ability and ethical standards.

Mr. McWherter is a lifelong Tennesseean and received his law degree from the University of Memphis. While in law school, he was a member of the University of Memphis Law Review, and served on the Editorial Board as Notes Editor.

In advocating for clients, McWherter has trudged through fire scenes and crawled storm-damaged roofs, quizzed consulting construction experts and experts for hours on end, and deposed and cross-examined hundreds of adjusters, experts, consultants, and other professionals within the insurance industry.  He reads insurance policies nearly every day and has a working knowledge of the customs and practices of insurance companies in investigation, estimating, and payment of claims.  McWherter counsels clients on presentation of claims, assists in compiling the evidence necessary to validate the amounts owed, and then enforces his clients’ rights, if necessary, via the judicial system and other alternative dispute resolution options, such as appraisal.

Several of McWherter’s cases have developed the law governing insurance disputes in the State of Tennessee, most recently including the Tennessee Supreme Court’s 2019 decision in Lammert et al. v. Auto-Owners Ins. Co., which held that insurers may not depreciate the costs of labor in determining their actual cash value payment obligations when the policy does not clearly allow it.

When not working, you will usually find Mr. McWherter with his wife, Angela, and his two daughters. He is an avid golfer and a lifelong bass fisherman, neither of which he does as often as he would like.

Practice Areas

  • Representation of policyholders in claims and litigation against insurance companies
  • Bad faith insurance litigation
  • Insurance-based consumer class actions

Professional Associations

  • Tennessee Bar Association
  • Arkansas Bar Association
  • Mississippi Bar Association
  • Tennessee Trial Lawyers Association
  • American Trial Lawyers Association (past member)
  • American Bar Association (past member)

Education

  • B.S.B.A. – Union University (1998)
  • J.D. – University of Memphis (2001)

Bar Admissions

  • Tennessee
  • Mississippi
  • Arkansas
  • Fifth Circuit Court of Appeals
  • Sixth Circuit Court of Appeals
  • United States District Court for the Western District of Tennessee
  • United States District Court for the Middle District of Tennessee
  • United States District Court for the Eastern District of Tennessee
  • United States District Court for the Northern District of Mississippi
  • United States District Court for the Southern District of Mississippi
  • United States District Court for the Eastern District of Arkansas