Heyl Royster


Heyl Royster


You Only Have How Much Insurance?! Prove It – I Need To Depose Your Insurance Broker!

By: Tyler Pratt, tpratt@heylroyster.com


With nuclear verdicts dramatically on the rise, it is no surprise that plaintiffs are looking closer at the amount of insurance procured by motor carriers. Despite Rule 26 of the Federal Rules of Civil Procedure requiring defendants disclose a copy of any applicable insurance policies, some plaintiffs have recently questioned whether defendants are being truthful about the amount of insurance available. Some have even gone to the extent of requesting the deposition of the defendant’s insurance broker or employee responsible for procuring insurance. These tactics are usually nothing more than a fishing expedition designed to intimidate defendants and their insurance carriers. After all, it generally benefits defendants to have more coverage available and defendants have no incentive to withhold this information. This is particularly true in cases involving catastrophic losses where defendants are most susceptible to excess verdicts. This article will highlight the most common minimum insurance limits required by the Federal Motor Carrier Safety Administration (FMCSA) Regulations, plaintiff’s requests, and some strategies defendants can employ to counter these requests.

FMCSA Minimum Insurance Requirements

Under Section 387.7, no motor carrier shall operate a motor vehicle until the motor carrier has obtained and has in effect the minimum levels of financial responsibility. The minimum insurance required for motor carriers is governed primarily by the nature of the carrier (i.e., private, for-hire, freight forwarding, etc.), and type of cargo.1 Specifically, the FMCSA requires:

Type of Freight

Minimum Limits

Non-hazardous freight in vehicles under 10,001 lbs.


Non-hazardous freight in vehicles over 10,001 lbs.


Oil moved by For-Hire & Private Carriers


Other Hazardous Material moved by For-Hire & Private Carriers


Although not required to do so, motor carriers often obtain insurance above these minimum thresholds. While there may be a number of reasons for doing so, when a plaintiff learns that the motor carrier only has the minimum, or slightly above the minimum, the amount of available insurance often becomes a target for dispute. This dispute is amplified when plaintiffs become “surprised” that a motor carrier’s insurance coverage appears incongruent with its size/solvency. In other words, plaintiffs may be under the impression that a company with several hundred drivers, tractors, and trailers should have millions, or even tens of millions, of dollars in liability coverage and excess policy coverage. When they do not, this causes plaintiffs great consternation and results in them requesting the depositions of insurance brokers and/or employees responsible for procuring insurance.

Plaintiff’s Requests / Theory

In cases involving catastrophic losses, plaintiffs often try to establish they need to depose a defendant’s insurance broker or the person responsible for procuring insurance to ensure they know the full amount of insurance coverage available. As evidence to support their need, they claim the motor carrier maintains such a small amount of coverage despite their apparent size and solvency in comparison to other trucking companies of similar size. These unfounded assertions are often raised after the plaintiff learns about the motor carrier’s financial status and are simply unwilling to accept it as true. Consequently, they use the guise of ensuring they know the full amount of insurance to mask their real motive—to pierce the corporate veil to personally recover against the officers, directors, and/or shareholders by claiming the motor carrier was intentionally underinsured and/or undercapitalized. The plaintiff will consider this a victory if they can convince the court they need this information, are able to conduct discovery related to this information, can use this information to embarrass and harass defendants, and ultimately increase their settlement position. In situations where these assertions are unfounded, it is important for a defendant to illustrate that such request is nothing more than an unproductive fishing expedition designed solely to intimidate the defendant. Given the sensitive nature of the information that may be exposed, it is critical for defendants to set forth a forceful response.

Defendant’s Response

While each case is different, there are many arguments that can be used to refute a plaintiff’s request that they need to depose a defendant’s insurance broker. Here are a few of the more common arguments to consider:

  • Certified copies of insurance policies were previously produced
  • Plaintiff never previously objected or the request is untimely
  • Plaintiff failed to establish why it is necessary or relevant to the allegations in the Complaint
  • Plaintiff failed to cite any supportive case law
  • It is unnecessary to determining punitive damage claims, if asserted, as insurance is not an asset or liability in calculating net worth
  • Plaintiff cannot discover whether defendant is underinsured because he has not properly set forth the allegations in his Complaint to pierce the corporate veil
  • Plaintiff cannot establish defendant is underinsured because defendant procured the minimum amount required and there is no case law requiring defendant to procure more
  • Depending on the jurisdiction and type of agent in question, an insurance broker or captive agent may not owe a fiduciary duty to procure adequate insurance for the defendant and that duty may not extend to the plaintiff.

While each case and situation is different, the bottom line is that defendants need to be in a position to illustrate that they have sufficient insurance, that they complied with all the rules and laws, and that plaintiff’s requests are nothing more than a gamesmanship tactic designed to cast defendants in a negative light. Plaintiffs are not trying ascertain the truth regarding the available insurance coverage, they are simply trying to gather more financial facts to demonize the defendant and further their David versus Goliath narrative.


Although these requests have become a trendy fad and plaintiffs are quick to threaten them, especially with the growth of nuclear verdicts, there are reasonable and practical arguments to refute them. In fact, only a few of these requests are justified and actually come to fruition. Consequently, defendants should not be intimidated by or apprehensive of plaintiff’s unfounded contentions. Instead, defendants should be prepared to highlight the unreasonableness of plaintiff’s request and their own compliance with the rules and laws. If they want the motor carrier to prove their insurance is inadequate, make them first prove why their request is valid!

1 See 49 CFR 387.9. Please note that at the time of this article, 49 CFR 387.33, which sets forth the minimum insurance limits for motor carriers of passengers, was suspended.