It can happen. Defendants get resentful that someone is pursuing them or may try to dodge their responsibility. Unfortunately for the claimant, there is an exclusion in every insurance policy – auto or homeowners – that if an insured does not cooperate with the insurance company, the insurance company either: (1) declines coverage all together and there is absolutely no insurance coverage or (2) the auto insurance coverage is reduced from the normal coverage limits to the minimum limits of $25,000.
I settled a case two weeks ago where the defendant did not cooperate with his attorney to answer interrogatories or show up at his deposition. He absolutely refused to cooperate. The defense attorney threatened to reduce the amount of coverage from $100,000 to $25,000.
So, we told the defense lawyer that we did not need answers to interrogatories and did not need his deposition. We were happy to proceed to trial without any participation from the defendant. I made the decision, from a tactical point of view, that if we went to trial, we would not even mention that the defendant was not there (that much) at trial.
That way, we take the wind out of the sails of the insurance company and eliminate the grounds for them to deny or reduce coverage. Who really cares anyway? It was a great liability case and the defendant was questionable.
The defendant had good reason not to show – he had a long criminal history. However, we were still able to ensure that our client had the defendant’s full insurance coverage available to him for recovery. We mediated the case and settled the case for $90,000.
Here are some cases that discuss this issue:
Missouri courts have consistently held that to deny coverage pursuant to a cooperation clause, the insurance company must prove three things: (1) there was a material breach of the cooperation clause; (2) the insurer suffered substantial prejudice by the breach; and (3) the insurer exercised reasonable diligence to get the insured’s cooperation. Roller v. American Home Insurance Co., 484 S.W.3d 110 (Mo. App. W.D. 2015); American Access Cas. Co. v. Alassouli, 31 (N.E.3d 803 Ill. App. 2015). This usually comes down to whether or not there is “substantial prejudice.”
In Hendrix v. Jones, 580 S.W.2d 740 (Mo. banc 1979), the Missouri Supreme Court analyzed the applicability of a non-cooperation clause when a Defendant failed to show up for trial. Noting the defendant’s questionable character, the Supreme Court held that the insurance company could not prove “substantial prejudice” from not having the defendant at trial. Id. at 744-45.
On the other hand, in Medical Protective Co. v. Bubenik, 594 F.3d 1047, the Eighth Circuit Court of Appeals applied Missouri law to analyze a non-cooperation clause. In this case, an insured physician refused to answer interrogatories, participate in discussions, share documents, submit to a deposition, or testify at trial. Id. at 1051. Noting that the defendant withheld useful information from his insurance company and attorneys, the Eighth Circuit held that the non-cooperation clause was applicable in this matter. Id. at 1053.