The most common causes of Big Rig Truck Crashes:
- Driver inattention;
- Inadequate training as to safety, handling characteristics and defensive driving.
- A system that rewards truck driver to drive at faster speeds and log more hours than what would normally be advisable.
- Unrealistic schedules given to truck drivers by trucking companies.
- Driver fatigue.
- Driver impairment by prescription drugs, or illegal drugs, or alcohol.
- Failure of the trucking company to properly audit logbooks, fuel receipts, and other documents to ensure that its drivers comply with the Federal Motor Carrier Safety Regulations as to maximum hours of service.
- Blind spots and improper use of mirrors.
- Poor maintenance or disregard of mechanical problems.
- Driver distraction with a cell phone and on-board computers.
The Federal Motor Carrier Safety Regulations
The Federal Motor Carrier Safety Regulations (“FMSCR”) govern interstate trucking operations. They are the “Rules of the Road” for truckers and trucking carriers. The following are the most frequently cited regulations that are relevant in truck accident cases:
• Knowledge and compliance with rules required. 49 CFR § 390.3(e) requires:
e1.- Every employer shall be knowledgeable of and comply with all regulations contained in this subchapter which are applicable to that motor carrier’s operations.
e2.- Every driver and employee shall be instructed regarding and shall comply with, all applicable regulations contained in this subchapter.
e3.- All motor vehicle equipment and accessories required by this subchapter shall be maintained in compliance with all applicable performance and design criteria set forth in this chapter.
• Mandatory instruction to Truck Drivers and many other trucking carrier employees regarding rules. 49 C.F.R. § 392.1:
Every motor carrier, its officers, agents, representatives and employees responsible for the management, maintenance, operation, or driving of commercial motor vehicles, or the hiring, supervising, training, assigning, or dispatching of drivers, shall be instructed in and comply with the rules of this part.
• Motor Carrier has a duty to ensure Truck Driver complies with the rules. C.F.R. § 390.11
It shall be the duty of the motor carrier to require observance of such duty or prohibition.
• Fatigue, Illness, etc. 49 C.F.R. § 392.3.
No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle. However, in a case of grave emergency where the hazard to occupants of the commercial motor vehicle or other users of the highway would be increased by compliance with this section, the driver may continue to operate the commercial motor vehicle to the nearest place at which that hazard is removed.
Hours of service
• Time 49 C.F.R. § 395/3 governs drivers’ hours or service.
No motor carrier shall permit or require any driver used by it to drive a property-carrying commercial motor vehicle, nor shall any such driver drive a property-carrying commercial motor vehicle… [m]ore than 11 cumulative hours following 10 consecutive hours off duty, or [f]or any period after the end of the 14th hour after coming on duty following 10 consecutive hours off duty, or for more than 60 hours in 7 days or 70 hours in 8 days.
• Record Keeping. 49 C.F.R. § 395.7.
Details the requirements for logging all-time driving, on duty and not driving and off duty. IT IS VERY COMMON THAT THESE LOGS ARE FALSIFIED.
• Driver’s record of duty status and supporting documents. 49 C.F.R. § 395.8
Requires that each motor carrier maintains records of duty status and all supporting documents for each driver it employs for a period of six months from the date of receipt. This is in addition to the driver logs which may include the supporting documents that are maintained in the ordinary course of business and used by the motor carrier to verify the information recorded on the driver’s record of duty status. These may include bills of lading, carrier pros, freight bills, dispatch records, driver call-in records, gate record receipts, weight/ scale tickets, fuel receipts, fuel billing statements, toll receipts, international registration plan receipts, international fuel tax agreement receipts, trip permits, port of entry receipts, cash advance receipts, delivery, lumpier, interchange and inspection reports, lesser settlement sheets, over/short and damage reports, agricultural inspection reports CVSA reports, accident reports, telephone billing statements, credit card receipts, driver fax reports, onboard computer reports, border crossing reports, custom declarations, traffic citations, overweight/oversize reports and citations, and or other documents directly related to the motor carrier’s operation, which are retained by the motor carrier in connection with the operation of its transportation business. Supporting documents may include other documents that the motor carrier maintains and can be used to verify information on the driver’s records of duty status.
Driving of Commercial Motor Vehicles
• § 392.14 Hazardous weather and visibility conditions.
This provides an extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect the visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Some courts have held a violation of this section is negligence per se.
• §392.4 Drugs and other substances.
(a) No driver shall be on duty and possess, be under the influence of, or use, any of the following drugs or other substances:
- Any 21 CFR 1308.11 Schedule I substance;
- An amphetamine or any formulation thereof (including, but not limited, to “pep pills,” and “bennies”);
- A narcotic drug or any derivative thereof; or
- Any other substance, to a degree which renders the driver incapable of safely operating a motor vehicle.
(b) No motor carrier shall require or permit a driver to violate paragraph (a) of this section.
(c) Paragraphs (a) (2), (3), and (4) do not apply to the possession or use of a substance administered to a driver by or under the instructions of a licensed medical practitioner, as defined in §382.107 of this subchapter, who has advised the driver that the substance will not affect the driver’s ability to safely operate a motor vehicle.
(d) As used in this section, “possession” does not include possession of a substance which is manifested and transported as part of a shipment.
- §392.5 Alcohol prohibition.
(a) No driver shall—
- Use alcohol, as defined in §382.107 of this subchapter, or be under the influence of alcohol, within 4 hours before going on duty or operating, or having physical control of, a commercial motor vehicle; or
- Use alcohol, be under the influence of alcohol, or have any measured alcohol concentration or detected presence of alcohol, while on duty, or operating, or in physical control of a commercial motor vehicle; or
- Be on duty or operate a commercial motor vehicle while the driver possesses wine of not less than one-half of one per centum of alcohol by volume, beer as defined in 26 U.S.C. 5052(a), of the Internal Revenue Code of 1954, or distilled spirits as defined in section 5002(a)(8), of such Code. However, this does not apply to possession of wine, beer, or distilled spirits
- §392.6 Schedules to conform with speed limits.
No motor carrier shall schedule a run nor permit nor require the operation of any commercial motor vehicle between points in such period of time as would necessitate the commercial vehicle being operated at speeds greater than those prescribed by the jurisdictions in or through which the commercial motor vehicle is being operated.
• Equipment inspection and use. 49 C.F.R. § 392.7
No commercial motor vehicle shall be driven unless the driver is satisfied that the following parts and accessories are in good working order, nor shall any driver fail to use or make use of such parts and accessories when and as needed. This includes things such as service breaks, including trailer brake connections; parking (hand) brake; steering mechanism; lighting devices and reflectors; tires; horn; windshield wiper or wipers; rear-vision mirror or mirrors; and coupling devices.
• Emergency equipment inspection. 49 C.F.R. § 392.8
No commercial motor vehicle shall be driven unless the driver thereof is satisfied that the emergency equipment required by 393.95 of this subchapter is in place and ready for use; nor shall any driver fail to use or make use of such equipment when and as needed. This could include things like fire extinguishers, spare fuses and warning devices for stopped vehicles (flares, reflective triangles, red flags).
• In section cargo and cargo securement devices. 49. C.F.R. § 392.9
A driver may not operate a commercial motor vehicle and a motor carrier may not require or permit a driver to operate a commercial motor vehicle unless cargo is properly distributed and adequately secured; tailgate. Tailboard, doors, tarpaulins, spare tire and secured. The cargo also cannot interfere with the driver’s view ahead or to the sides or movements. The driver also must assure compliance before starting a trip, and gain after 50 miles, any change of duty status after 3 hours, or after 15 miles, whichever comes first. This rule does not apply to the driver of a sealed commercial motor vehicle who has been ordered not to open it to inspect its cargo or to the driver of a commercial motor vehicle that has been loaded in a manner that makes inspection of its cargo impracticable. The regulatory guidance addresses situations dealing with sealed loads.
Stopped Commercial Motor Vehicles
• Screening of drivers 49 C.F.R. § 391.21
Specifies what must be included in driver’s employment applications. It requires that carriers check driving license records for the last three years, and inquire of previous employment with carriers for the same period, including verification of employment, accidents, DUI’s, positive or adulterated drug tests, and refusal to take drug tests. 49 C.F.R. § 391.25 requires that he carrier must make an annual driving record inquiry and review 49 C.F.R § 391.27 requires that the driver annually certify all traffic violations for the past 12 months. Records of all this must be maintained in the driver qualification file.
• Stopped vehicles. 49 C.F.R. § 392.22
requires that when a commercial motor vehicle stops on a highway or shoulder, the driver must active hazard warning signal flashers and within ten minutes must place either flares or bidirectional reflective triangles. If the vehicle is stopped within 500 feet of a curve, hillcrest of other view obstruction, warning devices must be places so as to provide ample warning. This regulation supports liability and occasionally even punitive damages, when a motorist crashes into a stopped tractor trailer in poor visibility conditions.
• Unauthorized riders. 49 C.F.R. § 392.60
prohibits transporting unauthorized passengers in a commercial vehicles other than buses. Violation of this rule particularly when the passenger is a romantic interest, can support a contention of a rule violation causing driver distraction and thereby contributing to cause of the crash and injury.
Parts And Accessories Necessary For Safe Operation
• Equipment regulations. 49 C.F.R. § 393.1 thru 393.209
Details the rules governing equipment, including lighting devices, reflectors, electrical equipment, brakes, windows, fuel systems, steering, and various other categories of equipment. Evidence of the various violations of equipment regulations can cumulatively support the plantiff’s case for liability and, in some instances, punitive damages.
• Record-keeping requirements.
Trucking accident cases are more document intensive than most tort cases other than products liability and medical malpractice. If a knowledgeable plaintiff’s attorney has the opportunity to get an early start on a case, the record-keeping required of motor carriers provides a wealth of opportunity.
Qualification of Drivers
• Driver qualification and investigation history files 49. C.F.R. § 391.51 and 391.53
Details the mandatory contents of driver qualification and driver investigation history files, including the employment application, responses by state agencies to requests for driving records, road test certificate, annual driver record responses, list of motor vehicle violations, medical examiner’s certificate, waiver letter regarding any physical disqualification, and records of the required inquiries to and responses from former employers. With limited exceptions, these files must be maintained three years after the end of employment. When a motor carrier borrows a driver regularly employed by another motor carrier 49 C.F.R. § 391.65 requires a certificate of qualifications must be provided by the regular employer and maintained by the borrowing carrier for two years.
• Other record-keeping requirements.
Appendix A to Part 379 sets forth the schedule of records and periods of retention. A one-year retention term is prescribed for personnel, payroll, shipping, and agency documents. Other corporate and financial records have longer retention terms.
• Qualification of drivers 49. C.F.R. § 391.11
This requires that a commercial truck driver must be:
- At least 21 years old.
- Able to read and speak English sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries and to make entries on reports and records.
- By reason of experience, training or both safely operate the type of commercial motor vehicle he/she drives.
- Physically qualified and also needs to have a valid driver’s license.
• Disqualifications of drivers. 49. C.F.R. § 391.15
Provides that a driver is disqualified by:
- Loss of suspension of the CDL.
- Driving a commercial vehicle with blood alcohol 0.04% or more or under the influence of drugs or refusing to take a drug or alcohol test.
- Transporting of illegal drugs.
- Leaving the scene of an accident.
- A felony involving use of a commercial vehicle.
- Violation of an out of service order.
• Physical qualifications 49. C.F. R. § 391.41
Requires that drivers not have various orthopedic impairments, epilepsy, psychiatric conditions, or high blood pressure that could interfere with operation of a commercial vehicle; insulin dependent diabetes or specific cardiovascular or respiratory conditions or high blood pressure that could interfere with operation of a commercial vehicle; insulin dependent diabetes; or specific cardiovascular or respiratory conditions. Drivers must have binocular vision corrected to at least 20/40 with 70 degree horizontal field of vision, ability to recognize colors of traffic signals and ability to hear a forced whisper at five feet. Drivers may not use medications without the physician being aware of their duties and advising that the medication would not adversely affect the ability to operate a commercial vehicle 49 C.F.R. § 391.43 through 391.47 outline medical examination requirements. About 37% of the FMCSR book deals with alcohol and drug testing procedures. A physician who issues a DOT medical certificate to a driver that has no liability to a person injured due to the truck driver’s medical condition.
• Statutory employer rule.
In the trucking industry, there is a long history of motor carriers using creative tricks to avoid financial responsibility for people harmed by trucks hauling freight for motor carriers.
Between 1935 and 1956 many interstate motor carriers attempted to immunize themselves from liability for the negligence of their drivers by leasing trucks and nominally classifying the drivers who operated the trucks as “independent contractors”
Because trip-leasing made it difficult for a member of the public injured by the operation of a leased vehicle to fix carrier responsibility and in order to protect the public from the negligent conduct of the often judgment-proof truck-lessor operators, congress passed a law in 1956 to require interstate motor carriers to assume full direction and control of the vehicles that they leased as if they were owners of such vehicles.
The purpose of this legislation was to ensure that interstate motor carriers would be fully responsible for the maintenance and operation of the leased equipment and the supervision of the borrowed drivers, thereby protecting the public from accidents, preventing public confusion about who was financially responsible if accidents occurred and providing financially responsible defendants. Thus since 1956, owner-operators who are independent contractors in relation to motor carriers have been considered “statutory employees” of the carriers in relation to any injured member of the public.
On this matter, Congress has unambiguously expressed its clear intent to establish minimum national standards for safety and financial responsibility of motor carriers. The Regulations authorized by Congress – 49 C.F.R § 390.5 (definitions of motor carrier, employer and employee), 49 C.F.R. § 376.2 (definition of lease as “contract or arrangement”) – unambiguously support holding the motor carrier accountable for injury to an innocent member of the traveling public caused by an independent contractor driver. The plain text of the regulations is clear. The definition of “motor carrier” includes “a motor carrier’s agent”, “employee” includes “an independent contractor while in the course of operating a commercial motor vehicle.” 49 C.F.R. § 390.5, and “lease” includes a “contract or arrangement” must have some significance other than mere redundancy. Moreover, “[e]very motor carrier, its officers, agents..shall be instructed in and comply with the rules” 49 C.F.R § 392.1
The regulatory guidance to 49 C.F.R. § 390.5, determines the word “employee”, this includes an independent contractor employed by a motor carrier. The existence of operating authority has no bearing upon the issue. The motor carrier is, therefore, responsible for compliance with the FMCRs by its driver employees, including those who are owner-operators.
The regulations create an irrefutable presumption of an employment relationship – statutory employment – “between the driver of a leased vehicle furnished by a contractor-lessor and a carrier lessee as a matter of law.
The common-law doctrines of master-servant, respondeat superior and independent contractor are preempted by these regulations”
The act and regulations were intended, in part, to address abuses that had arisen in the interstate trucking industry which threatened public safety, including the use by motor carriers of leased or borrowed vehicles to avoid financial responsibility for crashes that occurred while goods were being transported in interstate commerce. It would defeat the intent of the act and regulations to enable carriers to benefit from their own failure to comply with the regulations. Motor carriers must not benefit from the choice to place loads with unauthorized truckers who lack any semblance of operating authority or safety compliance. Although Regulations require a written truck lease, courts have held that a written lease is not a precondition to imposition of statutory employer liability on motor carriers.
These Regulations were intended to safeguard the public by preventing motor carriers from circumventing applicable regulations by leasing the equipment and services of independent contractors exempt from federal regulation. The definition of “lease” as “contract or arrangement” extends to any arrangement by which a carrier allows another to haul its freight for compensation. Any other construction would defeat the Congressional policy of requiring financially responsible interstate transportation.
An interstate carrier should not be able to evade the Regulations by making an informal arrangement with an owner-operator which attempts to exclude or to limit their application. Thus, when a lessor-operator is engaged by the carrier for operation within the scope of the regulations he becomes a “statutory employee” of the carrier and the relation between them, whether oral or written, is governed by the regulations.
A freight broker or “logistics services company” is not generally liable for the negligence of a motor carrier with which it places a load or negligent loading. It may however, be liable for negligent selection and hiring of a motor carrier if, for example, the carrier has a poor safety rating.
Sometimes motor carriers create a shell game in which they claim after a tragic accident happens, to have been acting as a broker or logistics company, rather than as a motor carrier. However, in their marketing materials, they represented to shipping customers they were a “one stop shop” that covered everything from pick up to delivery. 49 C.F.R § 371.7 (b) provides, “a broker shall not, directly or indirectly, represent its operations to be that of a carrier.” A broker may be treated as a carrier if it does not delineate the broker role.
We have run into numerous trucking Carriers that repeatedly state that they are not responsible for the bad acts of the truck driver because the truck driver was working as an independent contractor. This argument is sometimes made out of ignorance or just flat out refusal to take responsibility. Incredibly, some defense lawyers are ignorant of the concept of the truck driver being a “statutory employee” of the Carrier. Typically, when opposing counsel makes the argument that the truck driver’s negligence cannot be imputed on the carrier, it is a sign that the defense attorney is not well-schooled on the law.
The claim for punitive damages is important but not always a crucial part of the case. Punitive damages under Texas law are designed to penalize, punish, or deter conduct. Proof must be by “clear and convincing evidence.”
The Federal Motor Carrier Safety Regulations are a starting point for the use of corporate conduct as a foundation for punitive damages. As outlined above, 49 C.F.R. § 390.13 provides that a motor carrier should not aid, abet, encourage or require its employees to violate any of the rules of the FMCSR. 49 C.F.R. § 392.6 provides that no trucking company may schedule a delivery in such a way that would require the driver to operate his or her vehicle at speeds greater than those prescribed by the rules of the road in effect at the location in question. 49 C.F.R. § 395.3 provides that no trucking company shall permit or require any driver to exceed the maximum hours of driving time allowed under the FMCSR.
All trucking companies “shall systematically inspect, repair, and maintain, or cause to be systematically inspected repaired, and maintained, all motor vehicles subject to its controls” This general duty of a trucking company to maintain its vehicles in good working order includes a duty to maintain repair records and inspection reports and driver reports, which are to be filed by a driver each day on each vehicle driven, 49 C.F.R. § 396.11 and a duty to make periodic inspections of each vehicle, 49 C.F.R. § 396.11. This also can be found in the Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62 Fed. Reg. 16370 (1997) (carrier’s duty “to have in place management systems that effectively prevent” hours of service violations and falsification of logs)
• Interstate motor carrier insurance requirements
• Interstate carriers financial responsibility requirements
Since the enactment of Motor Carrier has been required to demonstrate proof of financial responsibility in one of four ways:
- A Guarantee.
- A Surety Bond.
- Qualification as a self-insurer to assure protection for the traveling public, 49 U.S.C § 13906 requires that motor carriers provide insurance coverage for leased as well as owned motor vehicles.
49 C.F.R. § § 387.1 states” the purpose of these regulations is to create additional incentives to motor carriers to maintain and operate their vehicles in a safe manner and to assure that motor carriers maintain an appropriate level of financial responsibility for motor vehicles on public highways.
The minimum levels of coverage are set by Federal Motor Carrier Regulations as follows:
–Minimum levels of financial responsibility- property, 49 C.F.R. §387.9
• Property/ dry freight ……………$750,000
• Oil/petroleum ………………$1,000,000
• Hazardous materials ………..$ 1,000,000
–Minimum levels of financial responsibility- passenger, 49 C.F.R. § 387.33
• Seating for 15 or less ………..$1,500,000
• Seating for 16 or more ………$ 5,000,000
–Adjusted inflation according to the Consumer Price Index:
• $750,000 in 1980 equals $1,921,811 in 2009 and is worth only $292,263 today
• $1 million in 1980 equals $2,562,415 in 2009 and is worth only $390,257 today
• $ 5 million in 1980 equals $12,812,075 in 2009 and is worth only $2,491,933 today
The policy forms most often encountered in trucking cases are the Business Auto (ISO Form CA 00 01), Truckers coverage (ISO Form CA 00 12) forms, and the Nontrucking Use Endorsement a/k/a “bobtail coverage” Occasionally, one may still encounter a Commercial General Liability policy, amended with an endorsement to provide coverage for trucks or trailers, even though in 2004, the Insurance Services Office (ISO) withdrew the motor vehicle law endorsement CG 99 01 for use with its CGL coverage in most jurisdictions.
• MCS-90 Endorsement.
A federally mandated endorsement known as the MSC-90 is provided under the Motor Carrier Act of 1980, which provides that commercial motor carriers engaged in interstate commerce must register with the United States Secretary of Transportation and comply with minimum financial responsibility requirements established by the Secretary of Transportation
The primary purpose of the MSC-90 endorsement is to assure that injured members of the public are able to obtain judgement from negligent authorize interstate carriers. The MCS-90 endorsement is “in effect, suretyship by the insurance carrier to protect the public safety net…[I] t simply covers the public when other coverage is lacking, it is designed to eliminate the possibility of denial of coverage by an insurer based upon an excess “other insurance” clause of other limiting provisions contained in the policy. To this end, the purpose of the statute is to ensure that a motor carrier has independent financial responsibility to pay for losses sustained by the general public arising out of its operations. MCS-90 limits apply on a per-accident basis. All endorsements and filings are deemed public information. Registered carriers must keep a copy on file at their principal place of business and produce such information to the public for inspection.
“Courts that consider the applicability of an MCS-90 endorsement, a federally mandated endorsement to motor carrier insurance policies, construe its operation and effect as a matter of federal law” state law governs interpretation of the underlying insurance policy. Thus both state and federal law may apply to the extent they do not conflict.
The MCS-90 endorsement “eliminates the possibility of a denial of coverage by requiring the insurer to pay any final judgment recovered against the insured for negligence in the operation, maintenance or use of motor vehicles subject to federal financial responsibility requirements, even though the accident vehicle is not listed in the policy”
There is a conflict of authority as to whether an MCS-90 endorsement must be implied when the insurer failed to issue it. Decisions in the Sixth, Seventh and Tenth Circuits support holding that the MCS-90 endorsement becomes part of an insurance policy as a matter of law even when the endorsement is not physically attached to the policy itself. Other courts have declined to reform policies to include omitted MCS-90 endorsement, and have held that it is the insured’s responsibility to inform the insurer of its need for interstate coverage. These courts reason that “a plain reading of the motor carrier regulations indicates that they place the burden of the compliance on the motor carrier not the insurer” and that “insurance companies have no general duty to advise an insured as the insured’s coverage needs.”
The MCS-90 endorsement is used in the interstate bus transportation context. There are no substantive differences between the two, as they contain identical language, except where they refer to their respective enabling statutes, the Motor Carrier Act of 1980 and the Bus Regulatory Reform Act of 1982.
• Employees of carriers cannot recover under MCS-90
The MCS-90 includes an employee exclusion which prevents injured employees- either direct or statutory- from recovering damages under the endorsement, whether or not they are driving at the time of the injury. However, state law governs the enforceability of such exclusions in the underlying insurance policy.
• Vehicle not listed
The public policy underlying the MCS-90 rule is a party to protect the public against unlisted equipment. Thus, the MCS-90 endorsement applies “regardless of whether or not each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the insured or elsewhere. The endorsement serves to protect the public from the inadvertent or intentional omission of the vehicles from required insurance policies. Likewise, the MCS-90 endorsement extends coverage for leased or non-owned vehicles. When a permitted or licensed motor carrier leases or hires a truck and driver, state and federal regulations vest control and responsibility of the leased equipment in the lessee.
Federal regulations also require the carrier’s name and ICC number to be displayed on the leased vehicle. The MCS-90 endorsement plays an important supplemental role to the leasing regulations by assuring that interchanged, leased, or substitute vehicles that operate under federal permits carry the same required protection as the regulated carrier’s own equipment. While the author has not located a case on point, it appears likely that the MCS-90 would also supersede named driver exclusions in the interest of protecting the public.
• Cancellation -35 days notice to insured, 30 days notice to FMCSA
Once the MCS -90 endorsement is issued and the requisite form is filed, the endorsement coverage remains in effect until it is canceled in accordance with the federal regulations. Cancellation of the endorsement is only effective upon “the company or the insured…giving:
- Providing 35 days notice in writing to the other party.
- Providing 30 days notice to FMCSA If the insured is subject to FMCS’s the Federal Motor Carrier Safety Administration’s jurisdiction.
• Tractor and trailer may have separate MCS-90 endorsements.
A few cases have allowed recovery under MCS-90 endorsement on an insurance policy issued to the owner of a trailer, treating the operator of the tractor as a permissive user of the trailer even when there is no claim of judgment against the trailer owner, as the MCS-90 states that the insurer must pay “a judgment” with no requirement that the judgment be one against the named insured. However, this issue remains controversial.
• MCS-90 does not create a duty to defend
Federal courts have consistently stated that the MCS-90 endorsement does not create a duty to defend claims which are not covered by the policy but only by the endorsement.
• Accidents on interstate trips
There is a conflict in the cases as to whether the MCS-90 endorsement to motor carrier’s liability policy unambiguously applies to liability for an accident during purely interstate trip. Although endorsement is federally mandated coverage to be carried by the registered interstate motor carriers, it contains no terms limiting the coverage to the use or operation of the vehicle in interstate commerce. However, other courts have reached a contrary result. In handling a case of an interstate carrier hauling an interstate load, note the line of authority holding that where a shipment from one state is destined to another state, it is an “interstate” shipment from beginning to end. But a Georgia case confirms that where an interstate carrier with no interstate authority is hauling dirt on a purely interstate trip, an MCS-90 is not invoked.
• Insurer’s right to reimbursement form motor carrier.
The MCS-90 endorsement states, in pertinent part, “the insured agrees to reimburse the company…for any payment that the company would not have been obligated to make under the provisions of the policy except for the agreement contained in this endorsement. Thus, while the MCS-90 endorsement ensures that a motor carrier has independent financial responsibility to pay for losses sustained by the general public arising out of its operations, the endorsement is designed to pretext the public, not the policyholder; the obligation the endorsement creates runs to the public, not to the insured. Under MCS-90, the ultimate responsibility lies with the insured trucking company.