Dolan v. Kemper Indep. Insurance , 237 Md. App. 610 ( 2018 )

Gary Dolan, et al. v. Kemper Independence Insurance Company, No. 0084, September
Term, 2017. Opinion by Arthur, J.
INSURANCE – EXAMINATION UNDER OATH
The circuit court correctly held that an insured’s willingness to submit to a deposition
was not the equivalent of submitting to an examination under oath (“EUO”) as required
under his insurance policy.
Submitting to a deposition will not satisfy the requirement of submitting to an EUO,
because “[a]n examination under oath and a pretrial deposition ‘serve vastly different
purposes.’” Brizuela v. CalFarm Ins. Co., 116 Cal. Rptr. 3d 661, 671 (Cal. Ct. App.
2004) (quoting Goldman v. State Farm Fire Gen’l Ins. Co., 660 So. 2d 300, 305(Fla.
Dist. Ct. App. 1995)). “The purpose of an examination under oath is to obtain
information as part of the insurer’s investigation of the insured’s claim” – to assist the
insurer in deciding whether to allow or deny the claim – “rather than for the litigation.”
Id. at 671-72. The procedures are also different. An EUO is not strictly subject to the
rules of civil procedure. Id. at 672. Additionally, the rules concerning the form and
substance of a notice of deposition (Md. Rule 2-412), the place where a deposition may
occur (Md. Rule 2-413), the persons who may attend the deposition (Md. Rule 2-413.1),
the procedure to be followed at and after the deposition (Md. Rule 2-415), and the use of
a deposition at trial (Md. Rule 2-419), all differ between depositions and EUO’s.
Hence, the insured’s refusal to sit for an EUO constituted a material breach under the
insurance policy, and the insurance company was not obligated to pay any benefits under
the policy.
Circuit Court for Anne Arundel County
Case No. C-02-CV-16-001592
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 0084
September Term, 2017
______________________________________
GARY DOLAN, et al.
v.
KEMPER INDEPENDENCE INSURANCE
COMPANY
______________________________________
Graeff,
Nazarian,
Arthur,
JJ.
______________________________________
Opinion by Arthur, J.
______________________________________
Filed: June 28, 2018
This appeal stems from a declaratory judgment action in which appellee Kemper
Independence Insurance Co. sought to establish that it had no duty to pay underinsured
motorist (UIM) benefits to appellant Gary Dolan. In support of its position, Kemper cited
Mr. Dolan’s unwillingness to participate in an examination under oath (EUO). Kemper
argued that, by refusing to submit to an EUO, Mr. Dolan had breached the insurance
contract. Kemper also argued that, under its policy, submission to an EUO was a
condition precedent to Mr. Dolan’s ability to file suit against Kemper for breach of
contract.
The Circuit Court for Anne Arundel County declared that Mr. Dolan was not
entitled to UIM benefits under the policy. Mr. Dolan appealed. We affirm.
FACTUAL AND PROCEDURAL HISTORY
The parties stipulated to the relevant facts:
On October 27, 2010, Mr. Dolan was a passenger in a vehicle operated by Windy
Marie Dolan. The vehicle was involved in an accident. Mr. Dolan sustained injuries as a
result of the accident.
Mr. Dolan’s parents had an automobile insurance policy with Kemper. Mr. Dolan
claimed UIM benefits as a “family member” under his parents’ policy.1
Section III, Part E, of the policy that Kemper issued to Mr. Dolan’s parents states,
in pertinent part, as follows:
We have no duty to provide coverage under this policy unless there has
been full compliance with the following duties:
1
The policy defined “family member” to mean “a person related to [Mr. Dolan’s
parents] by blood, marriage or adoption who is a resident of [his parents’] household.”
* * *
B. A person seeking any coverage must:
1. Cooperate with us in the investigation, settlement or defense
of any claim or suit.
* * *
3. Submit, as often as we reasonably require:
* * *
b. To examination under oath and subscribe the same.
Under Section II, Part F, of the Kemper policy, “No legal action may be brought
against [Kemper] until there has been full compliance with all the terms of this policy.”
Sometime in late 2010 or early 2011, Kemper became aware of the accident in
which Mr. Dolan was injured. Anticipating that Mr. Dolan might make a claim for UIM
benefits, Kemper requested that he give a recorded statement. Mr. Dolan’s counsel
denied the request.
On March 10, 2011, Kemper sent a formal request for a recorded statement via a
letter to Mr. Dolan’s counsel. Counsel denied that request as well.
On April 12, 2011, Kemper, through counsel, sent a written request for an EUO to
Mr. Dolan’s counsel. Two days later, Mr. Dolan’s counsel responded by email, stating
that Kemper was not entitled to an EUO until Mr. Dolan made a formal claim for UIM
benefits.
2
On August 8, 2011, Kemper received a letter from Mr. Dolan’s counsel. The letter
represented that Ms. Dolan’s insurer, Nationwide Mutual Insurance Co., had tendered its
policy limits of $50,000 in settlement of Mr. Dolan’s claims against her.
Under Md. Code (1996, 2006 Repl. Vol.), § 19-511 of the Insurance Article, as it
read in 2011, Kemper had 60 days from August 8, 2011, to decide whether to consent to
the settlement. If Kemper consented to the settlement, it would waive its right to “contest
the issues of tort liability” in Mr. Dolan’s action to recover on the policy. Maurer v.
Pennsylvania Nat’l Mut. Cas. Ins. Co., 404 Md. 60, 75 (2007); Morse v. Erie Ins. Exch.,
217 Md. App. 1, 21 (2014), aff’d sub nom. Woznicki v. GEICO Gen. Ins. Co., 443 Md. 93
(2015). If, however, Kemper refused to consent to the settlement, it was required to pay
the amount of the settlement offer to Mr. Dolan in order to preserve its defenses in a UIM
claim.2
On September 22, 2011, Kemper notified Mr. Dolan, in writing, that it would not
consent to Nationwide’s settlement offer. On the same day, Kemper advanced the
$50,000 that it was required to pay to preserve its right to contest issues of tort liability.
Mr. Dolan accepted Kemper’s check, thereby triggering his UIM claim against the
Kemper policy.3
2
In 2012, section 19-511 was amended so that “an uninsured motorist insurer
may consent to settlement with a tortfeasor without waiving its right to contest tort
liability[.]” Morse v. Erie Ins. Exch., 217 Md. App. at 22.
3
The parties did not make an express stipulation about the date on which Mr.
Dolan accepted the check. Mr. Dolan posits that he accepted the check on the date when
it was “paid,” which he claims was September 29, 2011.
3
At some point after the claim was triggered, Kemper requested an EUO. The
record does not reflect what response, if any, Kemper received.
On October 28, 2011, Mr. Dolan’s counsel wrote to Kemper’s counsel. The letter
transmitted information about Mr. Dolan’s injuries, requested information about the
dollar amount of UIM coverage under the Kemper policy, and asked whether Kemper
would tender the policy limits. The letter confirms that by that date Mr. Dolan had made
a formal claim for UIM benefits.
On November 7, 2011, Kemper’s counsel wrote to Mr. Dolan’s counsel. In that
letter, Kemper’s counsel confirmed an agreement with Mr. Dolan’s counsel that Kemper
was entitled to an EUO. Kemper’s counsel requested dates for the EUO.
On November 13, 2011, Kemper’s counsel sent a follow-up email to Mr. Dolan’s
counsel, offering proposed dates for an EUO. Mr. Dolan’s counsel did not respond to the
email.
Instead, on November 23, 2011, Mr. Dolan filed a complaint with the Circuit
Court for Anne Arundel County. The complaint alleged a negligence claim against
Windy Marie Dolan, the driver of the car in which Mr. Dolan was injured. The
complaint also alleged a breach of contract claim against Kemper for failing to pay UIM
benefits.
On December 5, 2011, counsel for Kemper spoke to counsel for Mr. Dolan to
follow up on the scheduling of an EUO. Mr. Dolan’s counsel said that an assistant at the
firm would secure a date for the EUO. Kemper’s counsel confirmed the discussion in a
letter of the same date.
4
On December 9, 2011, Mr. Dolan’s counsel called Kemper’s counsel to inform
him that Mr. Dolan had filed suit. Mr. Dolan’s counsel asserted that Mr. Dolan would
submit to a deposition, but would not appear for an EUO.
In a conversation with Kemper’s counsel on February 14, 2012, counsel for Mr.
Dolan confirmed that his client would not submit to an EUO and that a deposition would
give Kemper everything that it was entitled to receive. Kemper confirmed Mr. Dolan’s
refusal to submit to an EUO in a letter dated February 15, 2012. On the following day,
Kemper formally denied Mr. Dolan’s claim for UIM benefits.
At some point thereafter, Mr. Dolan was found to be incompetent to stand trial
against criminal charges in an apparently unrelated case. As a result of that finding, the
circuit court stayed Mr. Dolan’s lawsuit against Ms. Dolan (the driver) and Kemper.
Even after Mr. Dolan was later found to have regained his competence, the court
continued the stay, so that Kemper could file a complaint for declaratory relief.
On May 11, 2016, Kemper filed its complaint. In brief, Kemper asked the court to
declare that the policy required Mr. Dolan to submit to an EUO as a prerequisite to
receiving UIM coverage and that Mr. Dolan had breached the contract with Kemper by
refusing to submit to an EUO. Pending the adjudication of Kemper’s complaint for
declaratory relief, the circuit court continued the stay of Mr. Dolan’s tort claim against
the driver and his breach of contract claim against Kemper.
Although the circuit court initially denied Kemper’s motion for summary
judgment, Kemper and Mr. Dolan eventually agreed upon a set of stipulations concerning
5
the universe of relevant facts. The parties submitted the stipulations to the circuit court,
along with legal argument on their respective positions.
On March 20, 2017, the circuit court conducted what was nominally a bench trial,
but was really more in the nature of a hearing on a summary judgment motion, because
no facts were in dispute.4 After the hearing, the court issued a written declaratory
judgment, in which it concluded:
that submitting to an EUO administered by Plaintiff Kemper was a
condition precedent to him receiving UIM benefits under the insurance
policy issued by Plaintiff Kemper, that Defendant Gary Dolan’s failure to
do so amounted to a material breach of the insurance contract, and that
Defendant Gary Dolan is not entitled to receive UIM benefits under the
insurance policy issued by Plaintiff Kemper.
Mr. Dolan noted a timely appeal.
QUESTION PRESENTED
Mr. Dolan presents one question for our review:
Did the trial [c]ourt err by finding that Appellant had breached his contract
with Appellee by filing a law suit against Appellee before submitting to an
Examination Under Oath?
Mr. Dolan’s question misstates the circuit court’s conclusion, as well as Kemper’s
coverage position.
Kemper did not deny coverage because Mr. Dolan had filed suit before submitting
to an EUO. Although the express language of the Kemper policy prohibits legal action
against Kemper unless the insured has complied with all of the policy terms (including
On pages 2 and 9 of his brief, Mr. Dolan agrees that “only legal findings were
4
made” at the hearing.
6
the term requiring the insured to submit to an EUO), Kemper attempted to persuade Mr.
Dolan to submit to an EUO even after he had filed suit. Kemper denied coverage
because of Mr. Dolan’s continued refusal to submit to an EUO, not because he had filed
suit before submitting to an EUO.
Similarly, the circuit court did not conclude that Mr. Dolan breached the contract
by filing suit against Kemper before he had submitted to an EUO. To the contrary, in
remarks in open court, the circuit court recognized that even after he had filed suit, Mr.
Dolan could have complied with the request for an EUO by dismissing the case without
prejudice (which he could safely do, as the statute of limitations would not run for almost
two years), submitting to the EUO, and then refiling.
The circuit court’s conclusions, accurately characterized, were (1) that submitting
to an EUO was a condition precedent to receiving UIM benefits under the policy and (2)
that Mr. Dolan materially breached the policy by refusing to submit to an EUO – whether
before or after he filed suit. Consequently, we shall rephrase the question presented to
accurately reflect the court’s conclusions:
Did the circuit court err in concluding that, by failing to submit to an EUO,
Mr. Dolan failed to satisfy a condition precedent to receiving benefits under
the Kemper policy and materially breached the insurance contract?
For the reasons set forth below, we answer that question in the negative and
affirm.
STANDARD OF REVIEW
Maryland Rule 8-131(c) governs “[o]ur review of a trial court’s declaratory
judgment regarding the scope of coverage under an automobile insurance policy[.]”
7
Agency Ins. Co. v. State Farm Mut. Auto. Ins. Co., 193 Md. App. 666, 671 (2010) (citing
Mundey v. Erie Ins. Grp., 167 Md. App. 444, 450-51 (2006), aff’d, 396 Md. 656 (2007)).
Rule 8-131(c) states:
When an action has been tried without a jury, the appellate court will
review the case on both the law and the evidence. It will not set aside the
judgment of the trial court on the evidence unless clearly erroneous, and
will give due regard to the opportunity of the trial court to judge the
credibility of the witnesses.
Because the parties stipulated to the relevant facts, the court made no factual
findings. The sole issue before us is the correctness of the conclusions of law. We
conduct a de novo review of those conclusions. Bartlett v. Portfolio Recovery Assocs.,
LLC, 438 Md. 255, 272 (2014) (“[i]t is well established that pure conclusions of law are
reviewed de novo”); Agency Ins. Co. v. State Farm Mut. Auto. Ins. Co., 193 Md. App. at
672.
DISCUSSION
Automobile insurance policies commonly contain a provision requiring an insured
to submit to an EUO. “Generally, during an EUO, an insurer is ‘entitled to conduct a
searching examination, though all questions should be confined to matters relevant and
material to the loss.’” Phillips v. Allstate Indemn. Co., 156 Md. App. 729, 743 (2004)
(quoting 13 COUCH ON INSURANCE § 196:11, at 196-20 (3d ed. 2003)). The purpose of
an EUO is to assist in the evaluation of a claim, so that the insurer can decide whether to
pay it without the necessity of litigation. See Goldman v. State Farm Fire Gen. Ins. Co.,
660 So. 2d 300, 305 (Fla. Dist. Ct. App. 1995); Brizuela v. CalFarm Ins. Co., 10 Cal.
Rptr. 3d 661, 671-72 (Cal. Ct. App. 2004). An EUO may also assist in protecting an
8
insurer against false claims. Fineberg v. State Farm Fire & Cas. Co., 438 S.E.2d 754,
755 (N.C. Ct. App. 1994). While no Maryland case has discussed the precise contours of
an EUO, courts from other states have observed that an EUO is not subject to the rules of
civil procedure. See, e.g., Brizuela v. CalFarm Ins. Co., 10 Cal. Rptr. 3d at 672. Thus,
for example, the insured’s attorney has no right to examine the insured at an EUO. Id.
It is beyond any dispute that an insured breaches the insurance contract when he or
she refuses to submit to an EUO. In Phillips v. Allstate Indemn. Co., 156 Md. App. at
743, this Court held that an insured breached the contract when he appeared at an EUO,
but refused “to answer relevant, material questions.” We reasoned that the failure to
answer “questions that are relevant and material to an insurer’s liability for a loss and the
extent of that loss” “constitutes a failure to comply with a policy requirement to submit to
an EUO.” Id. at 745. Furthermore, we concluded that the breach entitles the insurer to
disclaim coverage even in the absence of a showing of actual prejudice. Id. at 746-47.5
5
Under § 19-110 of the Insurance Article, “[a]n insurer may disclaim coverage on
a liability insurance policy on the ground that the insured or a person claiming the
benefits of the policy through the insured has breached the policy by failing to cooperate
with the insurer or by not giving the insurer required notice only if the insurer establishes
by a preponderance of the evidence that the lack of cooperation or notice has resulted in
actual prejudice to the insurer.” (Emphasis added.) A liability insurance policy,
however, is a policy issued to protect an insured against the claims of injured third
parties. See Phillips v. Allstate Indemn. Co., 156 Md. App. at 746. Thus, in the cases
that address § 19-110, “the issue has been whether an insurer could disclaim coverage
and not pay benefits to a third party when the insured either failed to cooperate or to give
timely notice.” Id. Phillips did not involve a third party’s claim against the insured, but
rather a so-called “first-party” claim by the insured himself against his own insurer. Id. at
747. Therefore § 19-110 did not apply. Id.
9
If a party commits a material breach of an insurance contract by appearing at an
EUO but failing to answer some relevant and material questions, then the total failure to
submit to an EUO at all must certainly constitute a material breach as well. Indeed,
numerous courts from other states have held that the unexcused failure to appear at an
EUO constitutes a material breach that permits an insurer to disclaim coverage. Laine v.
Allstate Ins. Co., 355 F. Supp. 2d 1303, 1306 (N.D. Fla. 2005); Wiles v. Capitol Indem.
Corp., 215 F. Supp. 2d 1029, 1031 (E.D. Mo. 2001); Wingates, LLC v. Commonwealth
Ins. Co. of Am., 21 F. Supp. 3d 206, 218 (E.D.N.Y. 2014), aff’d, 626 F. App’x 316 (2d
Cir. 2015); Standard Mut. Ins. Co. v. Boyd, 452 N.E.2d 1074, 1079 (Ind. Ct. App. 1983);
Mello v. Hingham Mut. Fire Ins. Co., 656 N.E.2d 1247, 1250 n.5 (Mass. 1995); see also
U.S. Fid. & Guar. Co. v. Wigginton, 964 F.2d 487, 490 (5th Cir. 1992) (“the failure to
submit to examination voids the policy as a matter of law”) (applying Mississippi law);
Archie v. State Farm Fire & Cas. Co., 813 F. Supp. 1208, 1212 (S.D. Miss. 1992)
(stating that “an insured’s refusal to submit to an examination under oath in violation of
the express provisions of the insurance policy renders the policy void”); Lorenzo-
Martinez v. Safety Ins. Co., 790 N.E.2d 692, 695-96 (Mass. App. Ct. 2003) (stating that
“a wilful, unexcused refusal to submit to an examination under oath, without proof of
actual prejudice to the insurer’s interests resulting from the refusal, constitutes a material
breach of the insurance contract discharging the insurer's liability under the contract”);
Azeem v. Colonial Assur. Co., 96 A.D.2d 123, 124 (N.Y. App. Div. 1983) (“Plaintiff’s
failure to comply with the terms of the policy provision requiring submission to an
10
examination under oath constitutes a material breach of the insurance contract and is an
absolute defense to suit on the policy”), aff’d, 62 N.Y.2d 951 (1984).6
It is also beyond any dispute that an insured cannot pursue a claim against an
insurer if he or she has failed to satisfy a condition precedent to coverage. For example,
in Huntt v. State Farm Mut. Auto. Ins. Co., 72 Md. App. 189, 198 (1987), this Court
affirmed the entry of summary judgment against an insured who had failed to comply
with a contractual condition precedent that required her to submit to a physical
examination that would allow the insurer to evaluate her PIP claim.7 Where an insured
has failed to comply with a contractual condition precedent requiring submission to an
EUO, numerous courts from other states have held that the insurer may deny coverage.
Nationwide Ins. Co. v. Nilsen, 745 So. 2d 264, 267 (Ala. 1998); Goldman v. State Farm
Fire Gen’l Ins. Co., 660 So. 2d at 304; Watson v. Nat’l Surety Corp., 468 N.W.2d 448,
451 (Iowa 1991); Mello v. Hingham Mut. Fire Ins. Co., 656 N.E.2d at 1250; Baker v.
Independent Fire Ins. Co., 405 S.E.2d 778, 778-79 (N.C. Ct. App. 1991); Krigsman v.
6
Mr. Dolan appears to argue that, in view of a public policy that favors the
provision of compensation to innocent victims of motor vehicle accidents, a provision
requiring submission to an EUO is “unenforceable.” Mr. Dolan did not make that
argument in the circuit court, so it is not before us. See Md. Rule 8-131(a). Even if it
were before us, it would be completely untenable in light of this Court’s decision in
Phillips, which upheld the denial of coverage because of an insured’s refusal to answer
relevant questions at an EUO.
“PIP” refers to personal injury protection, a type of no-fault insurance that
7
motor-vehicle liability insurance policies are required to contain. See Md. Code (1996,
2017 Repl. Vol.), § 19-505 of the Insurance Article.
11
Progressive Northern Ins. Co., 864 A.2d 330, 334 (N.H. 2005); Spears v. Tenn. Farmers
Mut. Ins. Co., 300 S.W.3d 671, 680 (Tenn. Ct. App. 2009).
In arguing that he did not breach the contract or fail to satisfy a condition
precedent when he refused to submit to an EUO, Mr. Dolan focuses on Section III, Part
E, of the Kemper policy. To reiterate, that section states, in pertinent part, that:
We have no duty to provide coverage under this policy unless there has
been full compliance with the following duties:
* * *
B. A person seeking any coverage must:
1. Cooperate with us in the investigation, settlement or defense
of any claim or suit.
* * *
3. Submit, as often as we reasonably require:
* * *
b. To examination under oath and subscribe the same.
Citing the first sentence of this provision (“We have no duty to provide coverage
under this policy unless” etc.), Mr. Dolan argues that submitting to an EUO is a condition
to recovering benefits under the policy, not to pursuing a lawsuit. One need not read any
farther than the next page of the policy to see that his argument is incorrect.
On that next page, Section III, Part F, states, in pertinent part, that: “No legal
action may be brought against us until there has been full compliance with all the terms
of this policy.” Section III, Part E, paragraph B(3)(b), requiring an insured to submit to
an EUO, is obviously a “term” of the Kemper policy. Therefore, no legal action may be
12
brought against Kemper until an insured has submitted to an EUO, if one has been
requested.
Mr. Dolan posits a hypothetical scenario under which an insured submits to an
EUO before filing suit, but the insurer properly requests a second EUO after suit has been
filed. In his view, the insurer’s right to require multiple EUOs, both before and after the
commencement of litigation, demonstrates that submitting to an EUO cannot be a
condition precedent to filing suit. We agree that submitting to a post-litigation EUO
could not possibly be a condition precedent to filing a lawsuit that had already been filed.
Under Section III, Part E, of the Kemper policy, however, it would be a condition
precedent to Kemper’s “duty to provide coverage”: Kemper might have the right to deny
coverage if an insured refuses to submit to a second EUO after he or she has filed suit.8
Mr. Dolan contends that the language of the Kemper policy (“No legal action may
be brought against [Kemper] until there has been full compliance with all the terms of
this policy”) does not create a condition precedent. In advancing that argument, Mr.
Dolan acknowledges that “‘no particular form of words is necessary in order to create an
express condition’” (Brief for Appellant at 10 (quoting Chirichella v. Erwin, 270 Md.
178, 182 (1973)), but he argues that conditions are commonly created by the use of words
like “if,” “provided that,” “when,” “after,” “as soon as, “ or “subject to,” which the
Kemper policy does not use. The Kemper policy, however, does use the word “until,”
8
The same would be true if Kemper did not request an EUO until after an insured
had filed suit: submitting to a post-filing EUO would be a condition to the insured’s right
to recover benefits under the policy.
13
which creates as much of a temporal condition as words like “when,” “after,” or “as soon
as.” Furthermore, “until” is often used interchangeably with “unless,” a conditional term
that in logic is equivalent to “if not.” The pertinent language, therefore, unquestionably
creates a condition precedent.
In an effort to establish that he did not fail to satisfy a condition precedent to
bringing a legal action against Kemper, Mr. Dolan relies on McCullough v. Travelers
Cos., 424 N.W.2d 542 (Minn. 1988). A review of the facts of McCullough establishes
that it differs markedly from this case.
In McCullough the insured’s counsel informed Travelers that he would not be
available for an EUO on the date that the insurer had unilaterally selected. Id. at 543-44.
The parties agreed to postpone the EUO, and neither made any immediate attempt to
reschedule it. Id. at 544. The insured filed suit a few weeks later, and Travelers
responded by asserting that the suit was barred because of the insured’s failure to comply
with a condition purportedly requiring him to submit to an EUO before filing suit. Id.
The insured responded by expressing his willingness to submit to an EUO, and the
litigation moved forward into discovery. Id. Thereafter, “Travelers made no further
attempt to schedule an examination of the insured.” Id. Nonetheless, Travelers
persuaded the trial court to enter summary judgment in its favor because of the insured’s
failure to submit to an EUO. Id.
On appeal, the Supreme Court of Minnesota held that the language of the
Travelers policy (“‘[n]o suit or action on this policy for the recovery of any claim shall be
sustainable in any court . . . unless’”) (emphasis added) did not bar a suit or require an
14
oral examination before the filing of a suit. “Under this policy,” the court held, “an oral
examination under oath is not a condition precedent to suit.” Id. “Rather,” the
requirement of an examination was “a condition to recovery under the policy.” Id.
(emphasis added). Thus McCullough did not breach the insurance contract by filing suit
before submitting to an EUO. Id.
Nor was there any evidence that McCullough had refused to be examined under
oath. Id. at 545. The cancellation of one EUO because of counsel’s unavailability did
not amount to a failure to cooperate, and the insured had expressly stated that he was
available for examination shortly after he filed suit. Id. In the Minnesota court’s view,
“[t]he normal cooperation expected of opposing professional counsel was simply not
exhibited by either side in this case.” Id.
It would be something of an understatement to say that this case is unlike
McCullough. First, unlike the Travelers policy (which said that an action on the policy
was not “sustainable” unless the insured complied with all requirements of the policy),
the Kemper policy plainly states that “[n]o legal action may be brought” at all “until there
has been full compliance with all the terms of this policy.” Therefore, the Kemper policy
expressly creates a condition precedent to the commencement of a legal action, and not
merely to a recovery under the policy. Second, unlike the insured in McCullough (who
failed to attend an EUO only because the insurer had unilaterally selected a date on which
his counsel was unavailable, and who had expressed his willingness to submit to an
EUO), Mr. Dolan repeatedly failed to cooperate in the scheduling of an EUO and
15
categorically refused to submit to an EUO after he had filed suit. McCullough does not
advance Mr. Dolan’s case.
Mr. Dolan claims that he did not actually refuse to submit to an EUO, because, he
says, he never refused to appear for a scheduled examination. His claim is devoid of
merit. The stipulated facts show that, on no fewer than four occasions after Mr. Dolan
had made a formal claim against the policy, Kemper requested dates for an EUO. On one
occasion, Mr. Dolan’s counsel agreed that Kemper was entitled to an EUO. On another,
Mr. Dolan’s counsel said that an assistant at the firm would secure a date for the EUO.
Yet, Mr. Dolan’s counsel supplied no dates. Instead, Mr. Dolan filed suit against
Kemper, and his attorneys took the position that the insurer was no longer entitled to an
EUO. On these facts, it is inarguable that Mr. Dolan expressed a determination not to
submit to an EUO – i.e., he refused. See Webster’s Encyclopedic Unabridged Dictionary
of the English Language 1207 (1989). “[T]he record is indicative of a pattern of non-co-
operation for which no reasonable excuse for noncompliance has been proffered[.]”
Bulzomi v. N.Y. Cent. Mut. Fire Ins. Co., 92 A.D.2d 878, 878-79 (N.Y. App. Div. 1983).
Finally, Mr. Dolan argues that Kemper was able to obtain the substantial
equivalent of an EUO when it took his deposition. Nonetheless, he cites no legal
authority for the proposition that a deposition can substitute for an EUO. The absence of
authority is alone sufficient to allow us to deem the argument to have been waived and to
decline to address it. Anderson v. Litzenberg, 115 Md. App. 549, 577-78 (1997) (citing
Oroian v. Allstate Ins. Co., 62 Md. App. 654, 658 (1985)); accord Brass Metal Prods.,
Inc. v. E-J Enterprises, Inc., 189 Md. App. 310, 343 (2009); Livingstone v. Greater
16
Washington Anesthesiology & Pain Consultants, P.C., 187 Md. App. 346, 392-93 (2009).
Nonetheless, we shall exercise our discretion to consider the argument.
It is unsurprising that Mr. Dolan cites no legal authority for his position, because
numerous cases hold that an insured cannot comply with the requirement of submitting to
an EUO by submitting to a discovery deposition. See, e.g., Wingates, LLC v.
Commonwealth Ins. Co. of Am., 21 F. Supp. 3d at 219; Laine v. Allstate Ins. Co., 355 F.
Supp. 2d at 1306; Archie v. State Farm Fire & Cas. Co., 813 F. Supp. at 1213;
Nationwide Ins. Co. v. Nilsen, 745 So. 2d at 269; Brizuela v. CalFarm Ins. Co., 10 Cal.
Rptr. 3d at 671-72; Goldman v. State Farm Fire Gen’l Ins. Co., 660 So. 2d at 305; Allen
v. Michigan Basic Prop. Ins. Co., 640 N.W.2d 903, 908 n.8 (Mich. Ct. App. 2001);
Spears v. Tenn. Farmers Mut. Ins. Co., 300 S.W.3d at 682; see also Wiles v. Capitol
Indem. Corp., 215 F. Supp. 2d at 1031-32 (implying that deposition did not cure material
breach that resulted from failure to submit to EUO); Dyno-Bite, Inc. v. Travelers Cos., 80
A.D.2d 471, 474 (N.Y. App. Div. 1981) (“[t]he right to examine under the co-operation
clause of the insurance policy, however, is much broader than the right of discovery
under the [rules of civil procedure]”).
Submitting to a deposition will not satisfy the requirement of submitting to an
EUO, because “[a]n examination under oath and a pretrial deposition ‘serve vastly
different purposes.’” Brizuela v. CalFarm Ins. Co., 10 Cal. Rptr. 3d at 671 (quoting
Goldman v. State Farm Fire Gen’l Ins. Co., 660 So. 2d at 305). “The purpose of an
examination under oath is to obtain information as part of the insurer’s investigation of
the insured’s claim” – to assist the insurer in deciding whether to allow or deny the claim
17
– “rather than for the litigation.” Id. at 671-72. In addition, the procedures are different,
because an EUO is not strictly subject to the rules of civil procedure (id. at 672), such as
the rules concerning the form and substance of a notice of deposition (Md. Rule 2-412),
the place where a deposition may occur (Md. Rule 2-413), the persons who may attend
the deposition (Md. Rule 2-413.1), and the procedure to be followed at and after the
deposition (Md. Rule 2-415). In short, Mr. Dolan did not comply with his contractual
obligation to submit to an EUO when he complied with his obligation under the
Maryland Rules to submit to a pretrial deposition.9
In his reply brief, Mr. Dolan argues that the term “examination under oath” is
ambiguous and, hence, that that ambiguity should be construed against the insurer.
Ordinarily, we do not consider arguments that a party raises for the first time in a reply
brief. Jones v. State, 379 Md. 704, 713 (2004). But even if we were to consider it, we
would reject it, because there are literally dozens of reported decisions, scholarly
publications, and other authorities that describe what an EUO is. The Kemper policy is
written against the backdrop of that extensive body of law. Its use of the term
“examination under oath” is not ambiguous.
9
Some cases assert that in an EUO, unlike a deposition, an insured has an
obligation to volunteer information. See, e.g., Brizuela v. CalFarm Ins. Co., 10 Cal. Rptr.
3d at 672. Some cases also assert that in an EUO an insurer has or may have the right to
question an insured outside the presence of other insureds (see Goldman v. State Farm
Fire Gen’l Ins. Co., 660 So. 2d at 305), which could not occur in a deposition, at least if
the other insureds are parties. We express no view about whether those assertions are
consistent with Maryland law.
18
In summary, the circuit court correctly concluded that, by refusing to submit to an
EUO, Mr. Dolan breached the insurance contract with Kemper and failed to satisfy a
condition precedent to the recovery of benefits.
JUDGMENT OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.
19