The Role of the Examination Under Oath and Procedural Compliance with Insurer Demands

I will deliver a presentation at the Annual Meeting of the National Association of Public Insurance Adjusters (NAPIA) next month, focusing on two cornerstones of property insurance claims: proofs of loss and examinations under oath. It’s a topic I first addressed for NAPIA exactly forty years ago. This year’s session will be something of an encore performance. I will bring the benefit of four decades of legal experience focused on property insurance claims and evolving case law to bear before I get too old and forget more than what I have learned on these issues. Yet, the issues involving proofs of loss and examinations under oath remain as critical today as they were forty years ago.

While preparing for this updated presentation, I came across a remarkable historical case, Phillips v. Protection Insurance Company, ¹ decided by the Missouri Supreme Court in 1851. The case shows how enduring and complex these policy requirements have always been. This case was decided well before the establishment of modern court reporting. The procedures for conducting examinations under oath were far less formal than today’s transcribed sessions with legal counsel present. However, the legal principles at stake remain relevant. The case offers valuable lessons for today’s public adjusters and insurance company claims professionals.

The policyholder insured a stock of military goods and musical instruments stored in St. Louis. His merchandise was largely destroyed in the catastrophic St. Louis fire of May 17, 1849. Phillips quickly salvaged what he could and relocated the saved items. By June 9, he submitted a package of documents to the insurer, including a sworn inventory of saved goods, a statement estimating the total value of his stock at $16,500, and affidavits attesting to the loss. This submission, while comprehensive, lacked some specific details, such as sales records that would have documented the depletion of inventory since the last stock count. Despite these deficiencies, the insurer received the documents without formal objection, reviewed the materials, and even discussed potential settlement figures with the insured.

The turning point in the case came when, on June 19, 1849, the insurance company demanded that Phillips appear for an examination under oath. The court noted that this was a standard requirement in many fire policies. That same day, Phillips was preparing to leave St. Louis due to a personal emergency regarding his child, who was gravely ill. The city was in the grip of a deadly cholera outbreak. He departed and remained away until September 12, when he returned and promptly offered to appear for the examination. The insurer, however, refused to proceed and denied the claim entirely on the grounds that Phillips had failed to submit to the examination when originally requested.

In reversing a nonsuit issued by the lower court, the Missouri Supreme Court found in favor of Phillips and delivered a nuanced opinion about the role and application of the examination under oath. The court held that while such an examination is a valid and enforceable condition in a fire insurance contract, its execution must consider the circumstances. The justices observed that Phillips’ absence was not neglect or evasion but necessity. Furthermore, the court emphasized that his offer to submit to examination upon returning, only to be rebuffed by the insurer, demonstrated a good faith effort on his part to comply. The insurer’s refusal to proceed and its categorical denial of liability amounted to a waiver of the condition.

What makes the decision particularly notable is how it handles not just the examination issue but also other procedural requirements that insurers might try to enforce strictly. For example, the policy mandated that the insured procure a certificate of the loss from the “nearest magistrate or notary public.” Phillips complied by submitting certificates from two well-known city justices. The insurer objected, noting that a notary named Coste was technically closer to the loss location. However, the court found this objection to be without merit, stressing that Coste was relatively unknown and that Phillips had reasonably turned to recognized and reputable local officials. Moreover, once the insurer declined to accept any further documentation and declared the claim forfeited, it effectively waived its right to insist on strict adherence to such technicalities.

This aspect of the ruling reinforces the overarching theme of the case that procedural conditions in insurance contracts must be enforced considering fairness, context, and the parties’ conduct. An insurer cannot simultaneously reject a claim in absolute terms and then shield itself from liability by pointing to minor or technical failures in performance. In both the matter of the examination under oath and the magistrate’s certificate, the court took a practical, reasonable, and equitable approach, recognizing the insured’s good faith efforts and the insurer’s unwillingness to engage constructively in the claims process.

Procedures have changed significantly since 1851. Yet, this 174-year-old decision remains a foundational case with modern-day lessons. It illustrates that an insured’s literal duties are often not absolute barriers to recovery when performed reasonably and in good faith. Insurers who decline cooperation cannot later invoke procedural formalities as shields against their refusal to honor claims and act reasonably following a loss. While it is much safer to comply fully with all post-loss requirements, insurers should not be allowed to complain of technical deficiencies when the policyholder is acting reasonably and absent prejudice to the insurer.

For those interested in this topic of examinations under oath, I would simply search the term in our search function above or read “What Is an Examination Under Oath? What Happens When Policyholders Do Not Participate?”

For public adjusters, invest in your career, knowledge, and pathway to success. Network with and learn from many of the best public adjusters in the country. Learn how to better serve policyholders so that you will be their champions. You cannot find more experienced and more successful public adjusters in one place and at one time than at this meeting next month. I strongly suggest that public adjusters wanting to better themselves, their teams, and their profession attend NAPIA’s Annual Meeting. Register at this link: https://www.napia.com/events/2025-napia-annual-meeting-copy.

Thought For The Day

“The difference between genius and stupidity is: genius has its limits.”

—Albert Einstein

¹ Phillips v. Protection Ins. Co., 14 Mo. 220 (Mo. 1851).