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Overlawyered Insurance Dispute Sheds Light on Attorney's Fee Issue

On October 18, 2011, the Miami-Dade Daily Business Review reports on the case of DeLeon v. Great American Assurance Co., where the Third District Court of Appeals held that a truck driver is entitled to attorney's fees after an attorney for his insurance carrier improperly questioned him during an examination under oath, thereby making judicial intervention necessary to resolve the claim.

The facts are as follows--the truck driver's tractor-trailer was stolen while parked at an interstate trucking company. When the police found the truck, it was damaged and nine tires were  missing. The trucker filed a claim with his insurer. The insurer required the trucker to submit to an examination under oath ("EUO"), as part of its investigation. Like many insurance policies, the trucker's required him to provide the statement before initiating a lawsuit. However during the EUO, the bulk of the questioning pertained to the trucker's unrelated criminal conviction and who he was living with at the time. The trucker refused to answer these questions. In response, the insurance company attorney threatened the trucker that he was jeopardizing his insurance coverage and invited him to withdraw his claim in lieu of responding. The trucker walked out of the EUO before its conclusion and subsequently filed suit.

The appellate court found that it was necessary for the trucker to resort to litigation in order to resolve his claim. The appellate court reasoned that the insurance company "decided to use the usual policy provision requiring a sworn statement as a license to make unwarranted and intrusive inquiries into the personal life of any insured who has the termerity to make a claim against it." The appellate court's concurring opinion broadened the exhortation to all counsel practicing within the state and warned that it will not tolerate improper conduct by attorneys in the handling of disputes, whether inside or outside of the courtroom. This is yet another decision cautioning insurers and their attorneys on how insureds should be treated.

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