New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

The Office of General Counsel issued the following informal opinion on September 10, 2001, representing the position of the New York State Insurance Department.

RE: Insured’s Representative’s Examination Under Oath.

Question Presented:

If an insured does not produce its public adjuster for an Examination Under Oath, may an insurer deny a claim for lack of cooperation?

Conclusion:

Such an action by the insurer, under the circumstances presented here, would not be justified.

Facts:

The inquirer’s client, a corporation, has made a claim, on account of a covered loss, to its insurer in an amount in excess of $5 million. The policy in question provides, in pertinent part:

Duties in The Event Of Loss

(a) You must see that the following are done in the event of loss: . . . (7) cooperate with us in the investigation or settlement of the claim. …

(b) We may examine any Insured under oath while not in the presence of any other Insured and at such times as may be reasonably required, about any matter relating to this insurance or the claim, including an insured’s books and records. In the event of an examination, an insured’s answers must be signed.

Employees of the client appeared for a designated examination and, the inquirer represented and answered relevant questions. During the course of the examination, counsel for the insurer demanded that the client produce those employees of the public adjuster that it had retained who were familiar with the claim. At the examination, the inquirer asserted that the insurer was not entitled to such an examination. Counsel for the insurer indicated that, should the client refuse to produce the adjuster’s employees, the insurer would assert that the insured had breached the cooperation clause and deny the claim.

The demand, and the threat to deny the claim, was subsequently reiterated by the insurer’s counsel in a formal demand letter. The inquirer has requested that insurer’s counsel postpone the proposed examination until the inquirer can secure an opinion from this Department concerning the propriety of the insurer’s demand.

Analysis:

The obligation of an insured to participate in an Examination Under Oath is determined by the policy language. Levy v. Chubb Insurance Company, 240 App. Div. 2d 336, 659 N.Y.S. 2d 266 (1st Dept. 1997). Those policy provisions requiring participation by an insured in an Examination Under Oath have been strictly construed against the insurer. As to examination of parties other than the insured, it has been held that a mortgagee is not compelled to submit to such an examination with relation to a claim by the mortgagor. United States Fidelity & Guaranty Company v. Annunziata, 67 N.Y.2d 229, 501 N.Y.S. 2d 790 (1986). It has recently been held that an obligation by an insured to submit to an Examination Under Oath found in the fire insurance portion of the policy did not carry over into the Business Interruption Endorsement. Napco Security Systems, Inc. v. Gerling America Insurance Company, New York Law Journal, August 13, 2001 (Sup. Ct. Suffolk).

In order for there to be a breach of the cooperation clause, the attitude of the insured must be one of willful and avowed obstruction. Thrasher v. U.S. Liability Insurance Company, 19 N.Y.2d 159, 278 N.Y.S. 2d 793 (1967). An insured’s refusal to produce those of its employees familiar with the claim has been held to constitute such a breach. Somerstein Caterers of Lawrence, Inc. v. Insurance Company of the State of Pennsylvania, 262 App. Div. 2d 252, 692 N.Y.S. 2d 369 (1st Dept. 1999). While an examination of an insured’s agent concerning circumstances of the loss has been sustained, the fact that the witness was also the insured’s husband was significant. Kamenov v. Northern Assurance Company of America, 259 App. Div. 2d 958, 687 N.Y.S. 2d 838 (4th Dept. 1999).

A public adjuster is defined, New York Insurance Law §2101(g)(2) (McKinney 2000), in pertinent part:

Any person, firm, association or corporation who . . . acts or aids in any manner on behalf of an insured in negotiating for, or effecting the settlement of a claim or claims for loss or damage to property of the insured in this state . . . .

The term contemplates an independent contractor who is not an employee of the insured.

Given the language of the policy, which authorizes the examination of an "Insured", an examination of the insured’s adjuster does not appear to have been contemplated. Based upon the circumstances as presented, it is the opinion of this Department that the insurer could not, if the insured refuses to produce a representative of the retained public adjuster, invoke the cooperation clause of the policy as a basis for denying the claim.

For further information, you may contact Principal Attorney Alan Rachlin at the New York City office.