COOPERATION CLAUSE HELD TO ALLOW PRESENCE OF INSUREDS' WITNESS AT DEPOSITION

Homeowners	Cooperation Clause
Loss Conditions	Insured Witness

Loss procedure conditions in a homeowners policy, applicable to property coverage, included the following statement: "If a covered loss occurs, the insured person must....submit to examination under oath by a person named by us and sign the transcript of the examination."

The insureds employed an independent adjuster to help adjust their claim against the insurer after a loss to their residence. They appeared at a time and place designated by the insurer to give sworn statements but refused to give statements under oath unless the adjuster was present. The insurer refused to allow his presence. Thereupon, the insureds sued for recovery under the policy.

The trial court granted summary judgment for the insurer, which asserted that the insureds had no basis for a lawsuit against it. It was presumed that the insurer's motion for summary judgment was granted because of a determination that the insureds had failed to cooperate, as required.

On appeal, the court noted that the insurer had two of its claims people and an attorney present at the examination meeting and that there was no prohibition in the policy against the insureds having a witness present. The court said:

"We are of the opinion that the (insureds) presented themselves ready, willing and able to give a statement under oath as required by the policy. The (insurer's) refusal to take the statement cannot be said to be a failure on the part of the (insureds) to cooperate."

The judgment of the trial court was reversed in favor of the insureds and against the insurer. The insureds were found to have complied with the cooperation clause.

WIDENER ET UX, Plaintiffs-Appellants v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY, Defendant-Appellee. Tennessee Court of Appeals. No. 03A01-9506-CV-00203. September 29, 1995. CCH 1996 Fire and Casualty Cases, Paragraph 5525.