The Fifth Amendment and the Duty to Cooperate

(February 14, 2020)  The right against self-incrimination extends beyond criminal proceedings.  However, it is important to understand how assertion of that right may affect a policyholder’s rights in an insurance investigation.

Policyholders cannot assert their Fifth Amendment right against self-incrimination to avoid their contractual obligation to cooperate with their insurance company’s claim investigation. If the policyholder asserts the Fifth Amendment to refuse to provide documents, to submit to an Examination Under Oath, or refuse to answer questions at an Examination, they risk having their claim denied for failing to comply with their duty to cooperate under their policy.

On May 14, 2019, in Commonwealth v. Davis, the Pennsylvania Supreme Court held that the Fifth Amendment prevents the government from forcing an individual to reveal a password to an encrypted computer where disclosure of the password would require disclosure of the “contents of the individual’s mind.”

Commonwealth v. Davis does not impact an insurance company’s right to seek the same information. If the password to an encrypted hard drive was deemed to be material to an insurance investigation, the policyholder would still be obligated to provide that password. The policyholder could still assert their Fifth Amendment right and refuse to provide the password, but they would run the risk of their claim being denied. The Fifth Amendment does not eliminate a policyholder’s duty to cooperate.

We will continue to monitor and comment on this important issue.

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