Residential property insurance policies commonly require an insured to submit to an examination under oath (EUO) if requested by the insurer in connection with the resolution of a claim. (Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2023) ¶ 6:289.) Insurance Code section 2071.1, subdivision (a)(4), provides that an insured subject to an EUO “may record the examination proceedings in their entirety.”

Following water damage to his home, Vladimir Myasnyankin filed a claim under his property insurance policy with Nationwide Mutual Insurance Company.

Pursuant to the policy terms, Nationwide required Myasnyankin to submit to an EUO, which was scheduled to be in person. Relying on section 2071.1, subdivision (a)(4), Myasnyankin sought to video record the entire proceeding, including Nationwide’s attorneys and claims adjusters.

Nationwide refused to proceed with the EUO, asserting section 2071.1(a)(4) only permitted Myasnyankin to video record himself. Further, Nationwide threatened to deny his claim unless he agreed to proceed with the EUO. Myasnyankin then sued Nationwide seeking a declaration of his rights under section 2071.1.

Nationwide filed a demurrer to the complaint on the grounds that neither the policy nor section 2071.1 vested Myasnyankin with the right to video record all participants at his EUO. Looking at the plain language of section 2071.1 and the legislative history, and examining the distinction between section 2071.1 and the rules of civil procedure regarding depositions (Code Civ. Proc., § 2025.330, subd. (c)), the trial court overruled Nationwide’s demurrer.

The trial court interpreted the phrase “record the examination proceedings in their entirety” as including “video recording of the persons asking the questions, the person answering the questions, and any other aspect of the proceedings.” At the trial court’s suggestion, the parties entered a stipulated judgment in favor of Myasnyankin. Nationwide appealed the judgment (No. A166946). The trial court denied plaintiff’s subsequent motion for attorney fees, and plaintiff appealed that order (No. A167445).

The Court of Appeal was presented with an issue of first impression: whether Insurance Code section 2071.1, subdivision (a)(4) entitles an insured to make a video recording of the insurer’s participants in an EUO. After considering the statute’s plain language, statutory framework, and legislative history, it concluded that the provision does confer such a right in the partially published case of Myasnyankin v. Nationwide Mutual Ins. Co. -A166946 (January 2024).

” ‘An insured’s compliance with a policy requirement to submit to an examination under oath is a prerequisite to the right to receive benefits under the policy’’ ” (Abdelhamid v. Fire Ins. Exchange (2010) 182 Cal.App.4th 990, 1001 (Abdelhamid).) “Examinations under oath are frequently conducted under circumstances where the loss is undocumented or suspect.” (Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2023) ¶ 6:289.3.) “The purpose of the examination under oath is to enable the insurer to obtain the information necessary to process the claim: ‘ “As the facts with respect to the amount and circumstances of a loss are almost entirely within the sole knowledge of the insured, … it is necessary that it [the insurer] have some means of cross-examining, as it were, upon the written statement and proofs of the insured, for the purpose of getting at the exact facts before paying the sum claimed of it.” ‘ ” (Brizuela v. CalFarm Ins. Co. (2004) 116 Cal.App.4th 578, 591–592 (Brizuela).) “The examination is normally conducted orally before a court reporter who administers the oath and transcribes the proceeding.” (Croskey at al., supra, ¶ 6:289.).

Section 2071.1, subdivision (a), applies to “any policy that insures property and contains a provision for examining an insured under oath,” and enumerates a nonexclusive list of “rights of each insured who is requested to submit to an examination under oath.” One such right is to “record the examination proceedings in their entirety.” (§ 2071.1(a)(4).)

The parties agree the provision grants insureds the right to make an audio or video recording, but dispute who can be recorded on video. Myasnyankin argues the statute entitles an insured to video record the insurance company’s representatives, while Nationwide contends the provision only confers on insureds the right to video record themselves.

The history of section 2071.1, added in 2001 (Stats. 2001, ch. 583, § 5), is unequivocal that the motivating purpose was to provide protections for insurance consumers during the claims process. Section 1 of the enacted bill expressly so provides: “Existing legal protections for insurance policyholders proved to be inadequate after the Northridge earthquake. The public requires additional safeguards against unfair claim settlement practices by insurance companies.”

“To be sure, the legislative history does not explicitly address whether section 2071.1(a)(4) encompasses the right to video record the insurer’s representatives. However, it demonstrates an express and unequivocal intent to protect insureds from harassment in EUO proceedings, and this purpose is served by granting insureds such a right. Significantly, video records nonverbal conduct, such as eye-rolls or glares, which would not be captured by audio recordings or reporter’s transcripts.  (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶8:659.)  In addition, the knowledge that a person is being video recorded may prompt that person to modify their behavior in a positive manner.  

“The plain language, statutory framework, and legislative history all support a construction of section 2071.1(a)(4) granting insureds the right to make a video recording of the insurer’s representatives at an EUO, and such a construction is not unreasonable.”