The defendants brought a motion seeking to compel the plaintiff insured to attend for an examination under oath or alternatively an examination for discovery regarding the scope and quantum of damages arising from a flood loss claim under a property insurance policy.
The plaintiff argued that because the insurer had invoked the appraisal process under s. 128 of the Insurance Act, issues of quantum were exclusively within that process and outside the court’s jurisdiction.
The court rejected that position, holding that the statutory right to examine the insured under oath was not displaced by the election to proceed through appraisal and that the court retained jurisdiction to make procedural orders facilitating the statutory scheme.
The court also found the plaintiff’s proof of loss materially deficient and concluded that disclosure regarding damages was necessary.
A separate motion by the defendants to quash a summons requiring their appointed appraiser, who had since become counsel of record, to be examined was granted as the proposed examination constituted an unnecessary fishing expedition lacking evidentiary relevance to the pending motion.
