What is MCS-90?
The MCS-90 is an endorsement on a trucking company’s liability insurance policy, required by the Federal Motor Carrier Safety Regulations, which serves the function of a surety for safety of the public. Even if the the trucking company is not entitled to liability coverage due to some exception or exclusion in the insurance policy, an injured member of the public may recover under the MCS-90 endorsement and the insurance company may then seek reimbursement from the trucking company.
The purpose of the Federal Motor Carrier Act("FMCA"), and the regulations issued under the Act, especially the MCS-90, was to stem the unregulated use of vehicles in interstate commerce, which threatened public safety. Integral Insurance Company v. Lawrence Fulbright Trucking, 930 F.2d 258 (2d Cir.1991). One of the "significant aims" of federal rules regulating motor carriers is to eliminate "attendant difficulties" of fixing financial responsibility for damage and injuries to members of the public. Transamerican Freight Lines v. Brada Miller Freight Systems, Inc., 423 U.S. 28, 37, 96 S.Ct. 229, 46 L.Ed.2d 169 (1975). Accordingly, the MCS-90 should be construed and applied to protect members of the public injured by interstate motor carriers from uncompensated losses by mandating coverage where there would otherwise be no coverage). American Alternative Ins. Co. v. Sentry Select Ins. Co., 176 F.Supp.2d 550 (E.D.Va., 2001).
"A motor carrier of property has a duty under federal law to guaranty its financial responsibility for injuries to the public. Purchasing coverage under an MCS-90 endorsement is one way for a carrier to fulfill this duty." Harco National Insurance Company v. Bobac Trucking et al, 1995 WL 482330 at * 4 (N.D.Ca. 1995); Barbarula ex rel. Estate of He v. Canal Ins. Co., 353 F.Supp.2d 246 (D.Conn., 2004). The MCS-90 is not insurance coverage per se, but operates as a suretyship for the benefit of the public resting on top of the motor carrier’s liability policy. See, e.g., Canal Ins. Co. v. Carolina Cas. Ins. Co., 59 F.3d 281, 283 (1st Cir. 1995); John Deere Ins. Co. v. Truckin’ U.S.A., 122 F.3d 270, 274 (5th Cir. 1997). It does not create in the insurer a duty to defend, but only a duty to member of the public pay any judgment against the motor carrier resulting from negligence in operation, maintenance or use of motor vehicles even if not specifically listed on the policy. See, e.g., Canal Ins. Co. v. First Gen. Ins. Co., 889 F.2d 604, 614 (5th Cir. 1989); Industrial indem. Co. v. Truax Trucklines, Inc., 45 F.3d 986, 991 (5th Cir. 1995); National Am. Ins. Co. v. Century State Carriers, Inc., 785 F.Supp. 793, 795 (N.D. Ind. 1992).
The MCS-90 is applicable to interstate motor carriers. For intrastate carriers within Georgia a different law applies. I will cover that in a separate posting.
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.