Strategies, Challenges, and Answers

Assertion Of Fifth Amendment Privilege No Excuse For Refusing An EUO

Assertion Of Fifth Amendment Privilege On July 19, 1985, a fire damaged the Pervis’ home. Mr. Pervis filed a claim with his homeowner’s insurance company State Farm. However the fire was suspicious. State Farm asked for an examination under oath. But before it could go forward, the authorities brought charges of arson against Mr. Pervis. When the time came for the EUO to go forward, Mr. Pervis asserted his Fifth Amendment right to remain silent and refused to sit for an examination.

The arson trial went forward and Mr. Pervis was found guilty. However on January 8, 1987, the conviction was overturned because the he was denied the right to inspect the premises.

He then brought suit against State Farm alleging breach of contract. State Farm defended stating that the suit could not be brought because providing an EUO was a contractual precondition to bringing suit. Pervis responded that to force him to give an EUO would deny him his constitutional right. Pervis also said that the company was not prejudiced because he had given two recorded statements.

State Farm had alleged that one additional precondition had been violated. It pointed out that the insurance contract further required that actions brought against the insurer had to be commenced within one year of the loss.

In Pervis v. State Farm Fire and Casualty Co., 901 F.2d 944 (11th Cir. 1990) the court sided with the insurance company on both issues. The court explained,

Pervis seeks to recover proceeds based on the insurance contract to which he is a party; he must be held to the express terms of the agreement. He is not compelled to incriminate himself. He is, however, bound by the provisions to which he stipulated when he signed the insurance agreement and cannot expect State Farm to perform its obligations under the contract, by being subject to suit for payment of proceeds, without compliance on his part.

Id. at 947.

The court prevented Pervis from going forward with the suit because he did not give an EUO and didn’t bring the suit in a timely fashion.

If you have questions about Examinations Under Oath in Nevada, please feel free to contact Mike Mills at 702-240-6060×114.

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