New Court of Appeal decision allows insureds to video record examinations under oath

When faced with a suspicious claim, insurers often request that an insured answer questions about the claim in an examination under oath (EUO). The insured's rights at an EUO are enumerated by statute. Ins. Code § 2071.1. Historically, courts have focused on an insured's failure to comply with the policy's EUO requirement. But in a new decision, the California Court of Appeal held that an insured has a right to video record the EUO. This expansive interpretation of an insured's statutory rights creates new uncertainties and will likely lead to future disputes between insurers and insureds.

Myasnyankin v. Nationwide Mut. Ins. Co., 99 Cal. App. 5th 283 (2024) held that an insured can videotape the EUO in its entirety - including the attorney taking the EUO, as well as anyone else present during the proceeding, unless they appear remotely with their camera turned off. In so holding, the court paved the way for potential gamesmanship because it (i) did not require the insured to use a professional videographer, (ii) did not definitively rule whether the insured is permitted to record during breaks or before/after the proceeding, and (iii) created other potential issues, discussed below.

An insured has the right to videotape all participants at an EUO, including the insurer's attorney and adjusters

In Myasnyankin, the insured Vladimir Myasnyankin asserted that Insurance Code section 2071.1(a)(4) - which states that an insured "may record the examination proceedings in their entirety" - permitted him to video record the entire EUO, including the insurer's attorney and claim adjusters. Nationwide argued that section 2071.1(a)(4) permitted Myasnyankin to videotape only himself.

Confronting this issue of first impression, the Court of Appeal examined the language and legislative history of section 2071.1(a)(4). Based on the dictionary definition of "entirety," the court interpreted the section's language to mean that "an insured may record every element and part of the examination proceeding," which the court found includes the insurer's representatives attending the EUO.

Regarding legislative history, the court found that the Legislature's purpose in enacting section 2071.1 was to provide "basic due process rights" and consumer protections for insureds during the claim process, including the right to record an EUO. But the court acknowledged that the legislative history did "not explicitly address" whether section 2071.1(a)(4) encompassed the right to video record the insurer's representatives.

With respect to logistics, the court did not require the insured to hire a professional videographer. Rather, it held that the insured could videotape the EUO with a smartphone, which "can be placed on a tripod or otherwise propped up and left to record the insurer's representatives, without the need for a person standing by."

The only instance in which the court disallowed an insured from video recording an insurer's representatives is when the EUO is conducted on a teleconferencing platform, the adjusters appear remotely, and their cameras are turned off.

Finally, because the parties did not brief the issue, the court did not resolve whether "the right to record extends beyond the questions and answers of the examination to encompass all discussions and exchanges from, presumably, the moment the participants enter the room or join the videoconference until the moment they leave." Nevertheless, the court suggested that "it may be reasonable to construe the statute to include such a temporal completeness." Thus, whether the insured has the right to videotape off-the-record discussions between counsel and/or the insurer's adjusters during breaks is not entirely clear.

Potential consequences of the Myasnyankin decision

Myasnyankin has potentially opened Pandora's box for future disputes. As an initial matter, the decision could have a chilling effect on adjuster participation in EUOs. It might also encourage aggressive policyholders' attorneys to engage in obstructive conduct.

An aggressive lawyer or public adjuster representing an insured might try to videotape confidential conversations between the insurer's representatives during breaks or before/after the EUO. Relatedly, an insured's putative freedom to record all participants at any time during the EUO might discourage candid conversations between the parties' counsel off the record. This could impede counsel from reaching informal agreements that could possibly expedite resolution of the claim.

Moreover, because the court did not require the insured to use a professional videographer, an insured's attorney could attempt to change the angle, lighting, or quality of the video recording to cast the insurer's representatives in an unfavorable light.

Myasnyankin also opened the door for possibly problematic conduct in other areas of an insurer's claim investigation. Conceivably, an aggressive policyholder's attorney could argue that he or she can videotape an insurer's representatives at any time, not only during breaks at an EUO, but at a myriad of other routine meetings during the claim, including vehicle or site inspections and recorded statements. It is an open question, but it's doubtful that Myasnyankin would apply in those other circumstances because the Court of Appeal's rationale was limited solely to EUOs. The decision was based on an analysis of section 2071.1, which explicitly says "[t]his section applies to an examination of an insured under oath." Therefore, it is especially doubtful that the decision could apply to recorded statements taken by insurers, most of which are over the phone (not in person) and none of which are under oath. To the extent an insured tries to video record an adjuster during vehicle or site inspections, it is unclear how this might interact with California's two-party consent laws. See Cal. Pen. Code § 632.

There is no universal solution to the potential implications of the Myasnyankin ruling, but there are several pointers insurers should keep in mind. Even when an EUO is in person, company representatives not questioning the witness should consider appearing remotely with their cameras turned off. And all insurer representatives should treat the proceeding with the same professionalism as a formal deposition. Finally, if the insurer has advance notice that the insured plans to videotape the EUO, the insurer should ensure that it arranges to video record the EUO as well.