Claim Investigation: When the Insured Raises the Fifth Amendment Privilege

November 3, 2008

  • November 4, 2008 at 10:49 am
    Steven R. Sundheim, Esq. says:
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    The insurers understandably want as much info as they can obtain from their insured however unless the info provided to a claims person is somehow protected from a district attorney subpoena, demanding statements from the insured can be tantamount to forcing the insured to risk self incrimination when the insurance files get subpoenaed for possible criminal prosecution use. I have defended insureds who were in the construction field who are being threatened with possible criminal prosecution for a building collapse and death of workers while also facing civil suits for the same losses. The criminal defense counsel invariably tell the insured to not give statements or depositions and that partial waiver of their 5th amendment rights by answering some questions can lead to a DA or judge in a criminal proceeding pressing for more answers under threat of criminal contempt of court and even jail for the contempt. An insurer coverage denial for an assertion of fundamental constitutional rights seems unfair to the insured who may not be criminally liable but needs to take a very protected position that is a basic American right going back to the 1700s. Most courts will agree to stay a civil suit until criminal investigation and/or prosecution is completed at which point the insured may well be able to freely give information and testimony in the civil suit. One ought not lose insurance coverage under these circumstances.

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