Top Practice Tips for Dealing with the Insured but Uncooperative Defendant

One of the most frustrating issues that you will inevitably run across during your career if you practice personal injury law, is a defendant who is too ignorant to realize that it is in his own best interests to turn the legal papers over to his own insurance company and request they provide him with a defense. It generally happens because the defendant is unfamiliar with or uneducated about our legal system and does not understand that his auto policy entitles him to a free legal defense from his insurance company. As a lawyer who handles accidents in Houston, I have run into this several times in my 28-year career. Below I will share with you my best tip on how to deal with it.

The Scenario

Your client is in a wreck through no fault of his own.  You file a claim and when the time is right, make a demand. The other driver’s insurance company lowballs you. No problem.  You say to yourself, “I’ll just file a lawsuit, it is what I do.” You file the lawsuit wait the 28 days and…crickets. No answer from the defense.

The Motion for Default Delima

In Texas, when a defendant fails to answer, you can file a Motion for Default. Once granted, the defendant is deemed liable by way of not answering to defend himself.

You win, right?


In Texas, a defendant has an obligation created by the insurance contract to cooperate with his insurance company. If he fails to do so to the detriment of the insurance company’s ability to defend him, he is in breach of contract, and they can now withdraw coverage.  Thus, if you file a Motion for Default and it is granted, you win on liability against the other driver, but his insurance company is not liable for any judgment you take.

Practice Tip # 1: The Bluff Test

The first thing you can try is to prepare a Motion for Default and send it to the defendant and the adjuster. When you send the Motion for Default to the defendant, this sometimes prompts them to call the insurance company and ask what the motion is. This now creates a scenario of cooperation, and the adjuster has to educate the client about his rights and his obligations to stay in touch. Problem solved.

If the insured is not cooperating now, it could be that he 1) cooperated but then stopped cooperating, or; 2) he has never cooperated. If it is the latter situation, it may be that the client simply moved and forgot about the claim. Remember, all that time that your client is treating and calling you while you wait for treatment to end so you can get ademand or even a Stowers demand out, the defendant is likely hearing nothing. After a while, he may assume it was settled and forget about it. In this situation where the insurance company has simply lost contact with a cooperative client, they may file an answer anyway because the definition of “cooperation” is ambiguous enough that the insurer cannot be sure that their duty to the defendant was not already triggered by earlier communications with the insured.

If you are in the latter situation, then you will likely get no response to your draft Motion. Some arrogant adjusters will even call you up and tell you that “if you file your motion, we will withdraw coverage.”  In either case, I do not recommend pushing for a hearing to get a ruling on a Motion for Default yet. *However, if the court does grant a motion, keep in mind you can always set it aside by agreement if the defendant starts cooperating.

Practice Tip #2: Notice the Defendant’s Deposition

Notice and, if necessary, take the defendant’s deposition. Sometimes the notice will trigger an answer by the insurance company although this is uncommon in my experience. Before discussing the practicality of this, let’s talk about why you want this deposition. You want the deposition to trigger insurance coverage, not to void the contract. In order to do this, you are going to ask no questions about the car accident itself. In fact, you may not even take the deposition depending upon whether the defendant shows up or fails to show up.

Practice Tip #3 Subpoena the Defendant

service of processWhen you notice the deposition, subpoena the defendant. If the defendant has not cooperated before now, he is highly unlikely to show up for a deposition without being subpoenaed.

When the Defendant Shows for His Deposition

When a defendant shows up for a deposition, which is rare on the first try in my experience, the first thing I do is ask if he brought a lawyer?” If he answers “no,” then I ask him “Would you like to use a phone in a conference room to call your insurance company and see if they want to provide you with the free lawyer the insurance company is obligated to provide under you insurance contract so that your coverage is not voided by your lack of cooperation?”  If he does not have the number, I bet you can find it for him.  And, of course, if he reaches them and they would like to reschedule so they have time to file an answer and get a lawyer involved…no problem.

If for any reason you do end up taking the deposition, do not ask about the facts of the case or anything that might harm your coverage. Treat this as a coverage-finding-only deposition until you are sure there is no coverage. Ask if he had coverage, show him letters from the adjuster if he doesn’t know, and get on record “Would you like them to provide you with a free defense?” Then mail the transcript to them. If you prejudice the case by asking liability questions, you will guarantee no coverage.

When the Defendant Fails to Show for the Deposition or Dodges the Subpoena

As you probably know, a non-cooperative defendant often will not show up for a deposition even when he is subpoenaed. Furthermore, in this day of ringing doorbells and surveillance cameras, it is very easy for a defendant to dodge service by spotting your server coming, never answering the door to get served. In either scenario, you are faced with the issue of how to get an uncooperative defendant to a deposition.

Practice Tip #4: Invite the Whole Family to Participate

When the defendant fails to show or cooperate, talk to the people who know where he is. As a lawyer, you have a duty to zealously advocate on behalf of your client. This includes a duty to take whatever depositions are necessary not just to investigate and prosecute the case, but also to get the right parties before the court.

The first thing I do is run a marital history check in county records, run a driver’s license check to see who they say lives at the same address, run a social media check (and hire an investigator if needed) to determine what close friends and relatives I can identify in the area. Make a list of them all and notice every single one of them for deposition on the same day. Subpoena the whole lot of them. Then, reset the defendant’s deposition for two days before theirs. When all of the relatives start calling and claiming they “haven’t heard from him,” explain to them that your duty of due diligence and zealous advocacy to your client requires you to get their testimony under oath so they must appear. Also explain that, if the defendant shows his deposition two days before, they will not be required to attend. The defendant will be buried in phone calls from his friends and relatives telling him he had better be there because this has nothing to do with them.


We work in a system where the law requires us to serve defendants with lawsuits even though the insurance companies are the ones truly pulling the strings. If they are going to play the “no cooperation card,” we as Texas personal injury lawyers must be prepared to go the extra mile for our clients to trigger coverage. If threatening a Motion to Compel will not do the trick, notice the defendant’s deposition, subpoena him, and, if necessary, subpoena witnesses with knowledge who can get him there. If he decided to cooperate once there, great. If not, take a coverage deposition and send it to the adjuster. I have never had a defendant not show up or not call his insurance company when I have followed the above practice tips.




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