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Statute Authorizing Recording ‘Entirety’ of Examination of Insured Given Broad Effect
Majority of C.A. Panel Says Attorneys, Adjusters for Insurance Company May Be Videotaped
By a MetNews Staff Writer
Div. Five of the First District Court of Appeal has interpreted a statute saying that where an insured is obliged by a residential property insurance policy to provide sworn testimony as to the validity of a claim, that person “may record the examination proceedings in their entirety,” with the majority concluding that the language authorizes videotaping the insurer’s representatives who conduct the examination.
Justice Mark B. Simons authored the majority opinion, in which Justice Gordon B. Burns joined. Presiding Justice Teri L. Jackson wrote the dissent.
The statutory provision in question is Insurance Code §2071.1(a)(4). Simons said that because that provision authorizes recording an examination under oath (“EUO”) in its “entirety,” the insured, Vladimir Myasnyankin, had the right, as he asserted, to video- and audio-record Nationwide Mutual Insurance Company’s attorneys and adjusters during the scheduled examination of him.
The insurer called off that examination based on its insured’s position.
Simons’s Opinion
Simons said, in the published portion of an opinion filed Tuesday:
“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.”
He added:
“In addition, the knowledge that a person is being video recorded may prompt that person to modify their behavior in a positive manner….Granting insureds the right to record the insurer’s representatives furthers the Legislature’s purpose to protect insurance consumers from harassment during EUOs. For this reason, we reject Nationwide’s argument that video recording an insurer’s representatives is unreasonable.”
Burden Contended
Nationwide argued that accepting Myasnyankin’s position would result in an additional cost in the form of insureds hiring videographers. Simons said:
“….Nationwide does not claim video recording of EUOs must be done by a professional videographer, and the need for a videographer, or indeed for any person to constantly manage the camera, has been obviated by current technology.”
He commented:
“If the EUO is conducted on a videoconferencing platform, it is simply a matter of the insured recording the screen on their device. We presume the cost and delay attributable to recording an insurer’s representatives will be, in most if not all cases, de minimus.”
In a portion of the opinion that was not certified for publication, Simons said that Alameda Superior Court Judge Tara Desautels erred in denying an award of attorney fees pursuant to Code of Civil Procedure §1021.5, a private attorney general statute, requiring a public benefit.
Jackson’s Dissent
Jackson protested:
“Here, the Legislature could have specified—but did not—that the insured ‘shall’ have the ‘right to video record the examination proceedings.’ Nevertheless, even assuming the phrase ‘may record’ bestows upon the insured the right to video record the proceedings, nothing in the statutory language suggests the insured has the right to video record the insurer’s participants, including its attorneys and claims adjusters.”
The case is Myasnyankin v. Nationwide Mutual Insurance, 2024 S.O.S. 451.
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