After U.S. District Judge A. Richard Caputo of the Middle District of Pennsylvania denied Erie Insurance Exchange’s motion to dismiss a bad faith suit stemming from a home burglary, the plaintiff discontinued the suit.

At the heart of the controversy between Erie and its insured, is the question of whether an examination under oath by video conference satisfied the provision in the policy requiring the insured to cooperate with insurer’s investigation of the claim.

The dispute over the insured’s compliance stemmed from a request by Erie’s counsel for the insured to appear for an EUO to recount details pertaining to the burglary claim.  Following the burglary, the insured moved to Florida and insisted he could appear only by video conference.  Erie, however, refused to conduct a video conference, claiming, among other things, that it would make the use of exhibits too difficult and that since the incident occurred in Pennsylvania, the EUO should also take place in Pennsylvania.  Thereafter, the insured’s counsel emailed Erie claiming that the insured could not travel due to injuries.  In response, Erie filed a motion for summary judgment, alleging that the insured was not cooperating with its investigation under the terms of the policy and requesting that the court dismiss the insured’s bad faith claim.

Judge Caputo denied Erie’s request and made it clear that “It is a question of fact for the fact-finder as to whether or not [the insured’s] offer to submit to an EUO by video conference satisfied this provision to ‘cooperate’ with Erie in their investigation of [the insured’s] claim.”  Judge Caputo further opined that “a reasonable juror could find that EUO by video conference was sufficient to constitute cooperation, particularly given [the insured’s] medical condition.  However, a reasonable juror could also find that [the insured’s] refusal to appear in the commonwealth of Pennsylvania for the EUO, as specifically requested by Erie, failed to satisfy this provision requiring cooperation.”

The question of whether an insured’s offer to submit to an EUO by video conference satisfies insured’s obligation to cooperate with the insurer’s investigation will remain for another day.  Thanks to Hillary Ladov for her contribution to this post.  Please email Brian Gibbons with any questions.