Death in Airbnb Rental Raises Liability Questions

The New York Times ran an article on Saturday 14 November 2015 entitled in the print edition as Liability Questions after Death in Airbnb rental (Article).The decedent died when a rope swing pulled down the tree from which it depended and fell on top of him.

The article reminds those using the services of Airbnb and HomeAway to make sure that there is insurance in place. The article warns that in the normal homeowner's insurance policy there are exclusions for commercial activity

Caveat Emptor.

The Examination Under Oath a/k/a the EUO

In New York, one of the motor vehicle insurance coverages that come with your policy is no-fault. Claims for medical expenses and lost wages are filed against the No-Fault Insurance Carrier. To verify a claim, the No-Fault Insurance carrier may request an Examination Under Oath.

An Examination Under Oath is a creature of the No-Fault Regulations, called Regulation 68. It can be viewed on the website of the State of New York, Department of Financial Services (Website). The text of the Regulation 68 is found here. Regulation 68 is found in 11 NYCRR 65.

11 NYCRR 65-1.1 says that "Upon request by the Company, the eligible injured person or that person's assignee or representative shall: (b) as may reasonably be required submit to examinations under oath by any person named by the Company and subscribe the same.

Note that 11 NYCRR 65-1.1 empowers the insurance company to name any person before which a claimant must submit to an EUO. Frequently, insurance companies skip the naming letter. Instead of a naming letter, law firms announce sua sponte that they represent the insurance company and they wish to conduct an EUO. This is improper. 11 NYCRR 65-1.1 gives the insurance companies wide leeway in naming whomever they want. However, insurance companies must name someone. Law firms cannot name themselves.  Without a naming letter, it is impossible to know whether or not a law firm has the authority to act on behalf of the Insurance Company. Moreover, a naming letter pulls the law firms under the rules - few though they are - of Regulation 68. 

11 NYCRR 65-3.5 (e) is the next part of Regulation 68 that speaks about Examinations under Oath. 11 NYCRR 65-3.5 (e) requires that all examinations under oath shall be held as a place and time reasonably convenient to the applicant. 

11 NYCRR 65-3.5 (e) also requires that the Insurer at the time the examination under oath is scheduled to inform the applicant that the Insurer will reimburse any loss of earnings and reasonable transportation expenses.

11 NYCRR 65-3.5 (e) also that examinations under oath be used by the Insurer only when there is a "specific objective justification" based upon the application of objective standards supporting the use of such examination.

Examination Under Oath are critical moments in a case because, as you see on TV, anything you say can and will be used against you in a court of law. It is important that you are prepared for the questions that may be asked you to avoid being surprised at the EUO.