Kentucky's high court upholds EUOs, agrees with Coalition legal brief

By Howard Goldblatt & Matthew Smith
October 30, 2017

The Coalition, often in partnerships, is a leader in filing amicus curiae briefs on key court cases across the nation. Well-crafted “friend-of-the-court” briefs can influence positive court precedents that strengthen anti-fraud efforts around the U.S. — while protecting consumer rights.

A Kentucky case that threatened insurer EUOs shows why alertness is needed. A plaintiff attacked EUOs in court. A negative decision could’ve set a precedent that opened EUOs to attack in other states. We had to win this one.

Fortunately, the state Supreme Court correctly upheld an insurer’s right to conduct all-important Examinations Under Oath. The Coalition and NICB filed a joint amicus brief defending insurer rights to EUOs. It helped carry the day — with the highest court even mirroring our EUO defense. Here’s how the whole threat played out:

Court challenge: Whether auto insurers have the right to take EUO testimony under Kentucky’s mandatory PIP coverage. Most insurers believe they have an absolute right under the policy contract. Yet that argument failed in Kentucky lower courts. EUOs came under direct threat, and we had to navigate tricky waters.

EUO opponents argued: The legislature didn’t specifically include EUO rights in the state’s PIP statute. So insurers couldn’t take an EUO, even though the policy explicitly required it. The EUO policy provision thus was void. The legislature possesses sole decision-making power over the PIP statute. Only the statute controls PIP claims, including EUO rights.

Near-bedlam reigned in the state’s largest county (Jefferson County) while this case wound through the courts. Questionable PIP claims have exploded. Insurers found EUOs were crucial tools for gaining intelligence that could help dismantle staged-crash rings.

A lower court upheld EUOs: Another court denied the right unless it was specifically referenced in the state’s PIP law. Insurers must petition the court every time they want an EUO, a third court ruled. Insurers and claimants had no clear direction.

Court defends EUOs: The justices should consider the importance of EUOs as a fraud-fighting tool, the Coalition and NICB urged in our joint amicus brief. The majority agreed and upheld EUOs, specifically referencing our key amicus point.

We invite you to let us know about other cases that are important to fraud fighters. We can monitor them, and file an amicus brief if the issue meets Coalition criteria. Just contact Howard or Matthew.

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