[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 08-14072 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ APRIL 15, 2009
THOMAS K. KAHN
D. C. Docket No. 06-00129-CV-CDL-4 CLERK
BOBBY WATERS,
Plaintiff-Appellant,
versus
MEL MILLER, individually and
d.b.a. Fast Action Auto Transport,
PROGRESSIVE CASUALTY INSURANCE COMPANY,
PROGRESSIVE EXPRESS INSURANCE COMPANY,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(April 15, 2009)
Before BLACK and MARCUS, Circuit Judges, and BUCKLEW,* District Judge.
BLACK, Circuit Judge:
*
Honorable Susan C. Bucklew, United States District Judge for the Middle District of
Florida, sitting by designation.
This case arises from an accident caused when Mel Miller’s tractor-trailer
rear-ended Bobby Waters’ vehicle. The issues on appeal concern whether Miller’s
commercial vehicle insurance policy (Policy), issued by Progressive Express
Insurance Company (Progressive), remained in effect beyond its expiration date to
provide coverage for the accident. The district court found Progressive’s failure to
notify the state and federal regulatory agencies that the Policy expired did not
extend the Policy’s coverage to the time of the accident, as Waters argued before
the district court and now argues on appeal, and granted summary judgment in
favor of Progressive and Progressive Casualty Insurance Company.1 We reach the
same conclusion and thus affirm the summary judgment orders.
I.
On November 29, 2005, Miller, doing business as Fast Action Auto
Transport, was hauling automobiles from Florida to Georgia, when he drove his
tractor-trailer into the rear of Waters’ vehicle. As a result of the accident, Waters
was severely injured and required surgical treatment. Progressive denied coverage
of Miller’s claim, explaining that the Policy only covered the period from
September 11, 2004, to September 11, 2005. Prior to the Policy’s expiration date,
1
Progressive Casualty Insurance Company did not issue a policy to Miller, so Waters
does not challenge the grant of summary judgment in its favor.
2
Progressive had sent Miller five separate cancellation notices to inform him that
his failure to make payment would cause his insurance to lapse. When Miller
failed to pay the premium by September 11, 2005, the Policy expired.
Waters brought suit in Superior Court of Muscogee County for damages and
declaratory judgment against Miller, Progressive, and Progressive Casualty
Insurance Company. After the case was removed to the Middle District of
Georgia, the parties filed cross-motions for summary judgment. In two separate
orders, the district court granted the Progressive Insurance defendants’ motions for
summary judgment.2 See Waters v. Miller, 560 F. Supp. 2d 1318 (M.D. Ga. 2008).
The court also granted Waters’ request for leave to file an interlocutory appeal, as
the case remained pending against Miller. Id. at 1325. On appeal, Waters
challenges the orders granting summary judgment in favor of Progressive.
II.
We review the grant of summary judgment de novo, considering all
evidence and reasonable inferences drawn therefrom in the light most favorable to
the non-movant. Ellis v. England, 432 F.3d 1321, 1325 (11th Cir. 2005).
2
On a motion for reconsideration, the court determined its first order granting summary
judgment, while fully resolving the claims against Progressive Casualty Insurance Company,
only resolved the part of the claims against Progressive arising under Florida law. On
Progressive’s subsequent motion for final summary judgment, the district court ruled in its favor
on the remaining federal law question.
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A. State Regulatory System
Waters argues Progressive’s failure to notify the Florida Department of
Highway Safety and Motor Vehicles (FDHSMV) that the Policy expired before
the date of the accident extended the Policy’s coverage. We disagree. Under
Florida law, motor carriers operating commercial vehicles interstate must register
directly with the FDHSMV or a similar agency in a reciprocal state. Fla. Stat.
§§ 207.004(1)(a), 207.0281. Commercial motor vehicles are subject to higher
liability insurance coverage requirements than ordinary automobiles and must
prove compliance with those higher limits when registering. Fla. Stat. §§
320.02(5)(a); 627.7415(4). Critical to this case, each motor carrier must maintain
a liability insurance policy in full force and effect and the policy “may not be
canceled on less than 30 days’ written notice by the insurer to the [FDHSMV].”
Fla. Stat. § 320.02(5)(e).
As the district court found, Florida Statutes section 320.02(5)(e) applies
when an existing policy is cancelled, but not when a policy expires because of
non-renewal by the insured. The distinction between these two terms is
recognized by insurance treatises and Florida law. See 3-16 Holmes’ Appleman
on Insurance 2d § 16.7 (2009) (“[Cancellation] is to be distinguished from the use
of the term ‘termination’ . . . .”); 2 Couch on Insurance § 30:2 (3d ed. 2008) (“The
4
right to cancel is distinct from a policy’s lapse, or expiration by its own terms.”);
Safeco Ins. Co. v. Oehmig, 305 So. 2d 52, 54 (Fla. 1st DCA 1974) (construing a
“notice of cancellation” required by Florida Statutes section 627.728, which
expressly distinguishes between cancellations and nonrenewals). By the plain
terms of the Florida statute, we find Progressive’s failure to notify the FDHSMV
of the Policy’s expiration did not result in the continuation of insurance coverage
beyond September 11, 2005. Accordingly, we affirm the district court’s order
granting summary judgment to Progressive on the state law issue.
B. Federal Regulatory System
Waters also argues the insurance coverage remained in effect because
Progressive did not notify the Federal Motor Carrier Safety Administration
(FMCSA) that Miller’s Policy expired. We disagree. Under the Motor Carrier
Act of 1980, 49 U.S.C. § 10101 et seq., and the regulations promulgated
thereunder, certain interstate motor carriers must obtain an insurance policy
containing an MCS-90 endorsement “providing that the insurer will pay within
policy limits any judgment recovered against the insured motor carrier for liability
resulting from the carrier’s negligence[.]” Ill. Cent. R.R. Co. v. Dupont, 326 F.3d
665, 666 (5th Cir. 2003). Coverage from policies that include an MCS-90
5
endorsement remains in effect until the insurance company gives 30 days’ written
notice to the FMCSA. See 49 C.F.R. §§ 387.15, 387.313(d).
The parties do not dispute Progressive would be liable if the Policy included
the MCS-90 endorsement. In this case, however, the Policy did not include the
endorsement. Waters urges this Court to incorporate the endorsement into the
Policy as a matter of law, arguing the evidence presented to the district court
showed Progressive knew or should have known Miller was engaged in interstate
travel. Even if we assume arguendo such knowledge on the part of the insurer is
justification for incorporating the endorsement into a policy that does not contain
it,3 Waters did not present sufficient evidence to support the conclusion that
Progressive knew or should have known Miller was driving the tractor-trailer
interstate. For this reason, it is unnecessary for us to reach the issue of whether
the endorsement can be read into a policy that does not contain it, and we
expressly decline to do so. The district court did not err in refusing to rewrite the
Policy to include the MCS-90 endorsement, and we affirm its order granting
summary judgment in favor of Progressive on the federal law issue.
3
Some courts have incorporated the endorsement into policies as a matter of law. See
Prestige Cas. Co. v. Mich. Mut. Ins. Co., 99 F.3d 1340, 1348 n.6 (6th Cir. 1996); Travelers Ins.
Co. v. Tranp. Ins. Co., 787 F.2d 1133, 1139 (7th Cir. 1986); Hagans v. Glens Falls Ins. Co., 465
F.2d 1249, 1252 (10th Cir. 1972). At least one other, while not incorporating the endorsement,
indicated it may be read into a policy if the insurer knew it was insuring an interstate motor
carrier. See Howard v. Quality Xpress, Inc., 989 P.2d 896, 900 (N.M. Ct. App. 1999).
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III.
Progressive was entitled to summary judgment under the facts of this case.
Accordingly, we affirm the district court’s orders granting summary judgment to
Progressive.
AFFIRMED.
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