The Fifth Amendment & the Bad Faith Plaintiff

A Video Explaining Why a Plaintiff Has no Right to Assert Fifth Amendment ProtectionShow more

The Fifth Amendment to the U.S. Constitution protects an individual from being forced to testify in a manner that might incriminate him or her and subject the witness to prosecution. It is a defense, however, not a weapon that can be used against a defendant in a civil suit. Since civil litigation is entered into voluntarily, testimony in a civil suit brought by a plaintiff is not a compulsion to self-incrimination because the plaintiff can protect his or her privilege by dismissing the suit.

In Fremont Indemnity Co. v. Superior Court of Orange County, 137 Cal. App. 3d 554, 187 Cal. Rptr. 137 (Cal.App.Dist.4 11/19/1982), plaintiff owned a restaurant. Fremont, the defendant, issued a policy insuring against its loss by fire. The policy included an exclusion under which the insurer would be relieved of liability on the policy if it were shown that the insured’s arson caused the loss.

After the fire, a criminal investigation into the origin of the fire was undertaken, and plaintiff came under suspicion. As a consequence, the defendant declined to pay plaintiff’s claim. Because of this, plaintiff filed suit against his insurer.

Before his scheduled deposition counsel for plaintiff notified counsel for defendant that plaintiff would not appear for his deposition because he had been indicted for arson and therefore was asserting his constitutional privilege against self-incrimination.

Since it was the plaintiff who claimed the privilege as to his own behavior which was vitally relevant to a coverage exclusion contained in the very fire insurance policy upon which he sought recovery, the Court of Appeal issued a peremptory writ of mandate to the Orange County Superior Court directing it to compel the testimony, and if plaintiff continued to  refuse to appear for deposition as ordered or refused to provide the documentary evidence as already ordered, the Court of Appeal instructed the trial court to dismiss plaintiff’s action. He continued to refuse and his case against his insurer was dismissed.

© 2021 – Barry Zalma

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

Over the last 53 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.

Go to the podcast Zalma On Insurance at https://anchor.fm/barry-zalma;  Follow Mr. Zalma on Twitter at https://twitter.com/bzalma; Go to Barry Zalma videos at Rumble.com at https://rumble.com/c/c-262921; Go to Barry Zalma on YouTube- https://www.youtube.com/channel/UCysiZklEtxZsSF9DfC0Expg; Go to the Insurance Claims Library – https://zalma.com/blog/insurance-claims-library/ Read posts from Barry Zalma at https://parler.com/profile/Zalma/posts; and the last two issues of ZIFL at https://zalma.com/zalmas-insurance-fraud-letter-2/  podcast now available at https://podcasts.apple.com/us/podcast/zalma-on-insurance/id1509583809?uo=4