DocketNumber： Nos. 2001-0120 and 2001-0121
Judges： Bryant, Cook, Douglas, Moyer, Pfeifer, Resnick, Stratton, Sweeney, Third
Filed Date： 6/12/2002
Status： Precedential
Modified Date： 11/13/2024
dissenting.
{¶ 29} I respectfully dissent from the majority’s expansive interpretation of the MCS-90 endorsement. I believe that federal legislation, the language of the endorsement, and the intent of the parties support the opposite conclusion.
{¶ 30} The federal government’s Motor Carrier Act of 1980 established minimum financial responsibility requirements for motor vehicles used in interstate commerce. Sections 13902(a)(1) and 31139, Title 49, U.S.Code. The Act requires that a motor carrier have sufficient insurance to pay a final judgment against it. Section 13906(a)(1), Title 49, U.S.Code. The MCS-90 endorsement, required by the 1980 MCA, is required to be attached to a liability insurance policy issued to an interstate motor carrier. Section 387.15, Title 49, C.F.R. Its primary purpose is to protect the public by ensuring that a carrier has independent financial responsibility for the losses that arise out of that carrier’s trucking operations.
{¶ 31} This is evident from the standard language the government placed in the MCS-90. It provides that the insurer agrees to pay any final judgment recovered against the insured from public liability resulting from negligence in the operation, maintenance, or use of motor vehicles that are subject to the Motor Carrier Act of 1980. The MCS-90 also provides that the insured agrees to reimburse the insurer for any payment made under the MCS-90 on account of an accident, claim, or suit that the insurer would not have had to make but for the MCS-90. Therefore, the MCS-90 protects the injured person who has obtained a judgment against the insured by ensuring that the judgment will be paid. For
{¶ 32} The majority follows John Deere Ins. Co. v. Nueva (C.A.9, 2000), 229 F.3d 853, certiorari denied (2002), — U.S.-, 122 S.Ct. 1063, 151 L.Ed.2d 967, and Adams v. Royal Indemn. Co. (C.A.10, 1996), 99 F.3d 964, but acknowledges that both are factually different from this case. In Adams, the injured party was unable to collect the judgment he had obtained against the tortfeasor; in John Deere, the alleged tortfeasor did not have insurance and presumably would be unable to pay a judgment. The Adams court acknowledged that the tortfeasor was not insured under the trailer’s primary insurance policy, but expansively construed the MCS-90 to cover the unpaid judgment. The Adams court reasoned that the policy behind the MCS-90 was to protect against uninsured regulated vehicles. Id. at 968. John Deere followed the reasoning in Adams because the driver of the tractor in John Deere was uninsured and coverage under the MCS-90 was deemed necessary to achieve its purpose of making any judgment against him collectible. John Deere, 229 F.3d at 859-860.
{¶ 33} However, just one year earlier, the same court reached the opposite result when presented with circumstances more similar to the case before us. In Del Real v. United States Fire Ins. Crum & Forster (C.A.9, 1999), 188 F.3d 512, 1999 WL 626619, the Ninth Circuit affirmed without a published opinion the district court’s decision to deny coverage under the MCS-90 to an injured party who had collected the insurance proceeds from the tractor’s insurer. Del Real v. United States Fire Ins. Crum & Forster (E.D.Cal.1998), 64 F.Supp.2d 958. Del Real obtained a judgment against the driver and owner of the tractor, who had admitted liability for the accident. The judgment was paid in part by the owner’s insurer. Del Real attempted to collect the remainder of the judgment from the insurance covering the trailer after its owner had been dismissed from the underlying tort case. The district court held that the plaintiff was not entitled to recover under MCS-90 because neither the driver nor the owner of the tractor was an insured under the MCS-90 endorsement covering the trailer, and the endorsement obligates the trailer’s insurer only to pay “any final judgment recovered against the insured.” Id. at 964. I believe that the facts of Del Real are more closely aligned with the situation before us.
{¶34} I also believe that the majority’s decision to expand the MCS-90’s coverage to reach permissive users defies both logic and common sense. In this case, the negligence of the driver of the tractor was undisputed and the tractor’s liability insurance policy will indemnify him and the tractor owner up to the
{¶ 35} Nevertheless, as a result of today’s opinion, the trailer’s insurer will have to pay a judgment against a party other than its own insured. Furthermore, the insurer now has a right under the MCS-90 to recoup the payment from its insured for another person’s negligence. The majority acknowledges this problem as a peripheral issue that it need not consider. It is, however, an example of the majority’s overreaching interpretation and the illogical results it yields.
{¶ 36} The word “insured” in the MCS-90 refers to the insured identified in the body of the primary liability policy. Campbell v. Bartlett (C.A.10, 1992), 975 F.2d 1569; Natl. Mut. Ins. Co. of D.C. v. Liberty Mut. Ins. Co. (C.A.D.C.1952), 196 F.2d 597; Del Real, 64 F.Supp.2d 958. I do not agree that the meaning of “insured” may be expanded to include permissive users who are not insured under the policy. The purpose of the MCS-90, as the majority stresses, is the protection of the public. However, it must be within the confines of the contractual relationship established by the MCS-90. Therefore, for the foregoing reasons, I respectfully dissent and would affirm the judgments of the court of appeals.