Submitting to an examination under oath is not an absolute condition precedent to an insured filing suit.
Where an insurer requests an examination under oath (EUO) of the insured pursuant to the policy conditions, the insured's failure to set a date and time for the requested EUO prior to filing suit does not warrant the suit's dismissal. Although the insured's failure to submit to an EUO is a breach of the policy conditions, the insured should be allowed the opportunity to cure the breach as long as the insurer is not prejudiced by the insured's actions. The insurer maintains the burden of proving it was prejudiced by the insured's failure to present for an EUO.
Case Law Alert - 3rd Qtr 2012