UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2384
JOE LEE MCGIRT; DAT TAN LE,
Plaintiffs - Appellees,
versus
GULF INSURANCE COMPANY,
Defendant - Appellant,
and
ROYAL INSURANCE COMPANY OF AMERICA,
Defendant.
05-2419
DAT TAN LE,
Plaintiff - Appellant,
and
JOE LEE MCGIRT,
Plaintiff,
versus
GULF INSURANCE COMPANY; ROYAL INSURANCE
COMPANY OF AMERICA,
Defendants - Appellees.
No. 05-2420
JOE LEE MCGIRT,
Plaintiff - Appellant,
and
DAT TAN LE,
Plaintiff,
versus
GULF INSURANCE COMPANY; ROYAL INSURANCE
COMPANY OF AMERICA,
Defendants - Appellees.
Appeals from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (CA-02-
3455)
Argued: October 26, 2006 Decided: November 30, 2006
Before WILKINS, Chief Judge, and WIDENER and MOTZ, Circuit Judges.
Affirmed in part and reversed in part by unpublished per curiam
opinion.
-2-
ARGUED: Robert Lawrence Ferguson, Jr., FERGUSON, SCHETELICH &
BALLEW, P.A., Baltimore, Maryland; William Carlos Parler, Jr.,
PARLER & WOBBER, Towson, Maryland, for Appellant/Cross-Appellees.
Salvatore Joseph Zambri, REGAN, HALPERIN & LONG, P.L.L.C.,
Washington, D.C.; Patrick Giles Cullen, ROLLINS, SMALKIN, RICHARDS
& MACKIE, Baltimore, Maryland, for Appellees/Cross-Appellants. ON
BRIEF: Shannon E. Peters, FERGUSON, SCHETELICH & BALLEW, P.A.,
Baltimore, Maryland, for Appellant/Cross-Appellee Gulf Insurance
Company.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
-3-
PER CURIAM:
The injured driver of a passenger car, Dat Tan Le, and the
driver of the tractor trailer that injured him, Joe Lee McGirt
brought this declaratory judgment action. They sought a
declaration that, upon the insolvency of the self-insured owner of
the tractor trailer and its primary supplemental insurer, the
owner’s two excess insurers must pay any judgment in favor of Le in
an underlying tort suit from the first dollar of the judgment. Le
and McGirt also ask that the excess insurers defend McGirt in the
underlying tort suit and pay his attorneys’ fees here. They argue
that both the language of the excess insurance policies and the
MCS-90 endorsement attached to one of those policies require this
coverage.
On cross-motions for summary judgment, the district court held
that the language of the underlying policies did not require drop-
down coverage, defense of McGirt in a tort suit, or payment of his
attorneys’ fees. McGirt v. Royal Ins. Co. of Am., 399 F. Supp. 2d
655, 669 (D. Md. 2005). However, the district court also held that
the MCS-90 endorsement attached to one excess policy required that
excess insurer to pay the first $1 million of any judgment in favor
of Le. Id. at 667. The parties cross-appeal. After having had
the benefit of oral argument and briefing from the parties, and
after carefully reviewing the legal authorities and record, we
conclude that the district court did not err in any respect as to
-4-
its decision on the attachment point of the underlying insurance
policies, the insurers’ duty to defend McGirt, or the payment of
McGirt’s attorneys’ fees. As to these issues, we affirm on the
basis of the district court’s well-reasoned opinion. We reverse,
however, with respect the effect of the MCS-90.
I.
On or about March 24, 1997, a passenger car driven by Keith
Blocker hit Le while he was driving in Prince George’s County,
Maryland, immobilizing Le’s car on the highway. A tractor trailer
owned by Builders Transport and driven by McGirt then hit Le from
behind. The collision killed a passenger in Le’s vehicle and
severely injured Le. On or about January 15, 1999, Le sued McGirt,
Builders, Family Dollar Trucking (the owner of the trailer being
hauled by McGirt), and Blocker.
This case concerns Builders’ insurance status. Federal law
mandates evidence of financial responsibility for motor carriers
engaged in interstate commerce. 49 U.S.C.A. § 31139(f) (2006). At
the time of the accident, Builders satisfied these federal
regulatory requirements through approval by the Interstate Commerce
Commission (ICC) and Department of Transportation (DOT) as a
qualified self-insurer for the regulatory minimum of $1 million of
coverage. In addition, Builders carried supplemental primary
insurance with Reliance National Indemnity Company for $1 million
-5-
of coverage above the $1 million self-insurance, subject to a $1.65
million annual deductible. Builders also purchased excess coverage
from Gulf Insurance Company for $13 million, and further excess
coverage of $10 million above the Gulf policy from Royal Insurance
Company of America.
The parties agree that all of these policies were in effect at
the time of the accident. Thus, if Builders and its various
insurers had all remained solvent, a party like Le seeking to
recover a judgment from Builders would be paid in the following
order: (1) $1 million from Builders, through its self-insurance;
(2) $1.65 million, also from Builders, as its deductible under the
Reliance policy; (3) $1 million from Reliance; (4) $13 million from
Gulf; (5) $10 million from Royal.
This case arises because both Builders and Reliance have
become insolvent, and so unable to pay any judgment obtained by
Le.1 Because these primary insurers -- responsible for the first
$3.65 million of coverage -- cannot pay, Le and McGirt argue that
Gulf and Royal are required to drop down and pay first dollar
coverage for Le’s injuries. That is, even though Gulf and Royal
would not have had to pay any part of a judgment for Le until an
award exceeded $3.65 million if Builders and Reliance remained
solvent, Le and McGirt contend that, given the insolvency of
1
In May 1998, Builders filed for Chapter 11 Bankruptcy, and in
October 2001, Reliance declared itself insolvent and liquidated its
assets.
-6-
Builders and Reliance, Gulf and Royal must pay the judgment from
its first dollar.
Le and McGirt base their intentions on the language of the
Gulf and Royal policies and the MCS-90 endorsement attached to
Gulf’s policy. As noted above, we believe the district court
properly rejected the arguments based on the main body of the Gulf
and Royal policies. Accordingly, we turn to the effect of the MCS-
90 endorsement attached to the Gulf policy.
II.
The district court found, and Gulf now concedes, that a one-
page form -- the federally prescribed MCS-90 endorsement -- was
attached to and thus a part of Gulf's policy with Builders. Noting
the provision in federal law for an MCS-90 in certain
circumstances, the district court accepted Le and McGirt's argument
that this public policy purpose requires Gulf to provide the first
$1 million of coverage when, as here, there is no other protection
available for an injured member of the public.
Sections 29 and 30 of the Motor Carrier Act of 1980 mandate
that motor carriers hauling general commodities in interstate
commerce, like Builders, demonstrate proof of financial
responsibility in one of four ways: (1) insurance; (2) a guarantee;
(3) a surety bond; or (4) qualification as a self-insurer. 49
U.S.C.A. § 31139(f) (2006). Federal regulations provide that if a
-7-
registrant opts to pursue the first option and demonstrate its
financial responsibility through proof of insurance, the insurer
must maintain a “Form MCS-90 Endorsement” as part of the policy.
49 C.F.R. § 387.15 (2006). In these circumstances, the parties
must also file a separate certification of excess financial
security (Form BMC-91 or BMC-91X) with the regulators to create a
public record of the insurance. 49 C.F.R. § 387.313 (2006).
Certainly the district court was correct in recognizing the
public purpose served by an MCS-90 endorsement when a motor carrier
uses it to satisfy the obligations of the Motor Carrier Act of
1980. As the Department of Transportation explained in
promulgating the rule creating the MCS-90, “[t]he purpose of the
financial responsibility provisions of the Motor Carrier Act of
1980 is . . . to assure the general public that a motor carrier
maintains an adequate level of financial responsibility sufficient
to satisfy claims covering public liability.” Minimum Levels of
Financial Responsibility for Motor Carriers, 46 Fed. Reg. 30,974
(June 11, 1981).
In the case at hand, however, Builders satisfied the
requirements of the Motor Carrier Act of 1980 through its
certification as a qualified self-insurer, not through the MCS-90
attached to the Gulf policy. As a result, Gulf was not legally
required to include an MCS-90 endorsement with Builders’ policy,
nor to file a BMC-91 or BMC-91X with the federal government.
-8-
Federal law recognizes the risks inherent in satisfying the 1980
Act’s financial responsibility requirements through self-insurance:
“When ‘self-insurance’ is involved, there is no security for the
protection of the public other than the self-insured’s financial
strength . . . .” 46 Fed. Reg. 30974 (June 11, 1981). In sum, the
federal regulatory scheme contemplates that there may be situations
in which a member of the public will not be able to recover from a
self-insured motor carrier.
Thus, the general public purpose of the MCS-90 endorsement --
although important in interpreting the endorsement when it is used
to satisfy the Motor Carrier Act of 1980 -- does not resolve the
dispute here when the endorsement is not legally required.
Instead, we must look to the language of the MCS-90 endorsement
attached to the Gulf policy to determine the endorsement’s effect
on Gulf’s contractual obligations.
III.
The single-page MCS-90 form endorsement allows the parties to
mark a box indicating whether the underlying policy to which the
MCS-90 is “attached provides primary or excess insurance . . . for
the limits shown.” On the MCS-90 attached to the Gulf policy, the
parties marked an “X” before the “excess” statement, and filled in
limits of $1 million as shown:
-9-
[ ] This insurance is primary and the company shall not
be liable for amounts in excess of $_________________ for
each accident.
[X] This insurance is excess and the company shall not be
liable for amounts in excess of $1,000,000 for each
accident in excess of the underlying limit of $1,000,000
for each accident.
The form next includes a series of definitions, including that
“Public Liability means liability for bodily injury, property
damage, and environmental restoration.” The form then recites the
contents of the endorsement:
The insurance policy to which this endorsement is
attached provides automobile liability insurance and is
amended to assure compliance by the insured, within the
limits stated herein, as a motor carrier of property,
with Sections 29 and 30 of the Motor Carrier Act of 1980
and the rules and regulations of the Federal Highway
Administration (FHWA) and the Interstate Commerce
Commission (ICC).
In consideration of the premium stated in the policy to
which this endorsement is attached, the insurer (the
company) agrees to pay, within the limits of liability
described herein, any final judgment recovered against
the insured for public liability resulting from
negligence in the operation, maintenance or use of motor
vehicles subject to financial responsibility requirements
of Section 29 and 30 of the Motor Carrier Act of 1980
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. Such
insurance as is afforded, for public liability, does not
apply to injury to or death of the insured’s employees
while engaged in the course of their employment, or
property transported by the insured, designated as cargo.
It is understood and agreed that no condition, provision,
stipulation, or limitation contained in the policy, this
endorsement, or any other endorsement thereon, or
violation thereof, shall relieve the company from
liability or from the payment of any final judgment,
-10-
within the limits of liability herein described,
irrespective of the financial condition, insolvency or
bankruptcy of the insured. However, all terms,
conditions, and limitations in the policy to which the
endorsement is attached shall remain in full force and
effect as binding between the insured and the company.
The insured agrees to reimburse the company for any
payment made by the company on account of any accident,
claim, or suit involving a breach of the terms of the
policy, and 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.
Le and McGirt, citing the policy language providing that the
insurer agrees to pay “any final judgment recovered against the
insured for public liability,” argue that the MCS-90 requires Gulf
to drop down and pay any judgment for the public liability of
Builders in this case, i.e. the first million dollars. But the key
language -- “within the limits of liability described herein” --
comes immediately before this requirement. As an excess policy,
the Gulf policy ordinarily would not attach until there has been a
judgment of $3.65 million, so that the “limits” of the Gulf policy
are between $3.65 million and $16.65 million. Thus, it would seem
that the first $3.65 million of any potential judgment recovered
against Builders for its public liability is not “within the limits
of liability described.”
Even so, Le and McGirt argue that the language “no condition,
provision, stipulation, or limitation . . . shall relieve the
company from liability or from the payment of any judgment” means
that the major “limit of liability” of the Gulf policy -- that it
-11-
is an excess, not a primary policy -- should be “read out” of the
policy, and not apply. But the policy expressly repeats the phrase
“within the limits of liability herein described” in this sentence
of the endorsement, indicating that the ceiling and floor of the
“limits of liability” remain intact.
The district court nevertheless found the MCS-90 endorsement
ambiguous. Although neither the court nor Le and McGirt expressly
so state, seemingly the only possible source of ambiguity revolves
around the word “herein.” Conceivably, “herein” could refer to the
limits written on the MCS-90 itself next to the box checked on the
top of the form, rather than the limits of the policy to which the
form is attached. However, all three times that the term “herein”
is used in the MCS-90, the “policy” itself is also referenced
earlier in the sentence. Further, the MCS-90 limits are described
on the top of the form, above all three of these references, so the
use of the word “herein” instead of the word “above” in the MCS-90
indicates the reference is to the underlying attached policy.
Moreover, the MCS-90 states that the underlying policy to which it
is attached “is amended to assure compliance by the insured, within
the limits stated herein, as a motor carrier of property within
Sections 29 and 30 of the Motor Carrier Act of 1980 and the rules
and regulations of the Federal Highway Administration (FHWA) and
the Interstate Commerce Commission (ICC).” This language further
indicates that the MCS-90 only changes the limits of the body of
-12-
the policy if required to do so to comply with federal law.
Because Builders self-insured for the minimum regulatory amount,
this purpose is not triggered here.
Nor do we find persuasive Le and McGirt’s contention that
interpreting the MCS-90 in this manner robs it of all meaning.
What the excess MCS-90 does is negate an insurer’s ability to rely
upon policy conditions -- such as notice requirements or
restrictions to vehicles or incidents covered -- to disclaim
coverage. It does not alter the point at which an insurer’s
liability is triggered. In sum, the MCS-90 does not change the
attachment point of Gulf’s obligations -- a judgment of $3.65
million.
We note that the only other circuit to consider the meaning of
the MCS-90 in this context -- in a case involving the same insurer
and insured -- has reached the same conclusion as to its effect on
the policy limits.2 The Sixth Circuit, in Kline v. Gulf, 2006 U.S.
App. LEXIS 25755 (6th Cir. Oct. 18, 2006), held that the MCS-90
attached to Gulf’s excess insurance policy with Builders “did not
change Gulf’s liability.” Id. at *12. As we do now, the Sixth
Circuit concluded that the “herein” language surrounding “limits of
liability” in the MCS-90 “incorporated the limits of liability in
2
The panoply of appellate cases upon which Le and McGirt rely
involve primary insurance policies, or excess policies with no MCS-
90 endorsement, or MCS-90 endorsements necessary to satisfy federal
requirements, or disputes between insurers involving multiple MCS-
90 endorsements. Accordingly, these cases are inapposite here.
-13-
the original insurance policy; it did not replace them.” Id. Of
course, in Kline, Reliance had not yet become insolvent, so the
injured member of the public could recover part of her judgment
from Reliance. Although the Sixth Circuit noted that fact as an
additional basis for its conclusion, it initially held that “the
language of the MCS-90 as a whole . . . leads to the conclusion
that Gulf did not change its coverage when filling out the
government-prepared form,” i.e. the MCS-90. Id. at *9.
We recognize that this decision leads to an unfortunate
outcome for the injured member of the public. But given that
federal law seeks to protect the public by guaranteeing some proof
of financial responsibility by motor carriers, not by mandating a
minimum payment to the injured, we are bound by the terms of the
contract between Builders and its insurers.
IV.
For the foregoing reasons, the judgment of the district court
is
AFFIRMED IN PART AND REVERSED IN PART.
-14-