Top Ten Tips for Examinations Under Oath

• Date: 01 June 2024
• Author: Marjorie C. Nicol

Insurance Coverage Litigation

Vol. 33 No. 2

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Published in Coverage Vol. 33 No.2., Copyright © 2024 American Bar Association. All rights reserved. This information or

any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic

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Top Ten Tips for Examinations Under Oath

By Marjorie Nicol

10) Check the policy language to see who you can examine. Some policies allow the insurer

to examine only insureds while others allow the insurer to examine anyone seeking coverage

(a PIP recipient).

9) Check the policy to see if there are any other guidelines for examinations. Some policies

state, for example, that no one else can attend the examination.

8) If the witness has counsel, allow him or her to attend the examination, but remind the

witness that objections are inappropriate, as the examination is not a deposition.

7) Notice the examination just as you would a deposition.

6) Serve the notice by regular mail, email, or overnight mail to the witness or counsel if the

witness has counsel.

5) Do not subpoena the witness, as the examination is not being taken under the auspices of

the court.

4) You may include a list of requested documents with the notice of examination, although

the right to such documents may not necessarily be enforced by a court.

3) Sometimes noticing an examination will trigger a lawsuit. Even so, proceed with the

examination; a deposition is not a substitute for a deposition.

2) If a lawsuit is f‌iled after noticing an examination, seek an abatement of the lawsuit under

the policy’s “Legal Action Against Us” provision, which usually renders the examination a

pre-condition to suit.

1) Conduct a broad examination in case a court in later litigation limits the ability to depose

the same witness.

Marjorie Nicol is a partner in the Houston office of Cox PLLC, specializing in insurance

coverage litigation.