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

https://zalma.com/blog

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\\u2019s 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\\u2019s 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\\u2019s action. He continued  to refuse and his case against his insurer was dismissed. \\xa9 2021 \\u2013 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.