Most insurance companies do not understand what triggers an insured's appearance to an examination under oath or giving a statement.
One of an insurance company’s favorite methods of wiggling out of coverage is a material misrepresenta- tion defense. A material misrepresentation occurs when an insured misrepresents material facts that prejudices an insurance company. Material misrepresentations are in 2 categories: 1) a material misrepresentation made before claim arises and 2) material misrepresentations made after the claim arises. The second category is more difficult for an insurance company to prove than the first category. Many times lawyers and medical providers are afraid of material misrepresentation claims and will abandon a PIP claim or a personal injury claim once an insurance company raises a material misrepresentation defense to cover age. A knowledgeable attorney well-versed in coverage can definitely defeat an insurance company’s material misrepresentation defense in both categories.
One of the keys to defeating a material misrepresentation claim is proper preparation of an insured giving statements and examinations under oath. No statements and/or examinations under oath should be provided until the insurance company follows the strict letter of the law in requiring attendance to a statement or an examination under oath. Most insur- ance companies do not understand what triggers an insured’s appearance to an examination under oath or giving a statement. This provides an avenue for an experienced attorney to protect an insured from giving a statement and/or an examination under oath. Many attorneys practicing personal injury are great attorneys but unfortunately are not well-versed in coverage cases.
Insurance companies love to use policy provisions against an insured to try to prove a material misrepresentation. But why not use those same policy provisions against an insurance company to defeat a material misrepresentation claim. This is what an experienced attorney well-versed in coverage cases does. Smart medical providers will make sure that they use experienced attorneys in coverage cases to stand in and represent the insured in cases where insurance companies ask an insured to appear to a statement or an examination under oath or in cases where an insurance company claims that the insured committed a material misrepresentation. So the next time a lawyer or a medical provider sees a material misrepresentation defense, do not be afraid just get someone well-versed in coverage to handle the claim.
George A. David, Esq.
