Effective January 27, 2010, the FMCSA and Transportation Secretary Ray LaHood announced an order forbidding commercial drivers from texting on hand-held mobile devices. Any driver found to be using a hand-held device to read, or send, a text message will be subject to fines of as much as $2,750.00.
The Federal Agencies also addressed further concerns raised by the Senate Commerce Committee about extension of the ban beyond just trucks and buses. Other types of electronic devices as well as additional motor vehicles will be addressed in other soon-to-come rules. The immediate ban is possible under the FMCSA’s and Secretary of Transportation’s inherent oversight of all interstate devices under 49 CFR 1.73(g) and 49 U.S.C. Chapter 311.
The rule is the first of several rules which will be put in place in response to the FMCSA’s recently completed “Driver Distraction in Commercial Operations” study, which was released on October 1, 2009. Watch for future Reminger Reports as these new rules are released.
MCS-90 “CLARIFIED”
In Carolina Cas. Ins. Co. v. Yeates (2009), the United States Court of Appeals for the 10th Circuit, sitting en banc, unanimously overruled its 1989 decision in Empire Fire & Marine Ins. Co. v. Guar. Nat’l. Ins. Co. In doing so, the Court aligned itself with the majority of Federal Appellate Courts that have concluded that the MCS 90 Endorsement should not affect the allocation of coverage among insurers. This decision is likely to have profound impact as it relates to prior decisions of State Courts and the 6th Circuit Court of Appeals that relied in part upon the 10th Circuit’s 1989 Empire decision for their interpretation of MCS 90 Endorsements.
The MCS-90 Endorsement is a creation of the Motor Carrier Act of 1980. Since its inception, its wording and provisions are so ambiguous that it has created what the 10th Circuit called “confusion about the effect of an MCS-90 Endorsement on an injured party’s right to recover a negligence judgment against a motor carrier.” In overruling its prior decision, the 10th Circuit noted that its Empire Fire decision “had evolved into an idiosyncratic, minority position that frustrates the regulatory purpose behind the MCS-90 Endorsement and impedes the uniform regulation of interstate trucking.”
In urging reversal, Carolina Casualty Company took the position that MCS-90 Endorsement was a surety provision to make it an insurer of last resort, requiring payment only when no other insurance is available. In Yeates, the 10th Circuit agreed and found that the surety approach does not alter the underlying policy and does not preclude the insurer from seeking reimbursement for its surety-based payments on behalf of the motor carrier. The Court found that an MCS-90 Endorsement only applies (1) when the underlying insurance policy to which the endorsement is attached does not provide coverage for the motor carrier’s accident, and (2) the motor carrier’s insurance coverage is either not sufficient to satisfy the federally prescribed minimum levels for financial responsibility (presently $750,000.00) or is non-existent.
Most importantly from a practitioner’s application, the Court found that the Endorsement is irrelevant and has no affect on the ultimate allocation of a judgment against a motor carrier, as between the carrier and its various insurers. To ensure that its prior expansive interpretation of the MCS-90 Endorsement in the Empire Fire case was unambiguously incorrect, the 10th Circuit clearly stated that the MCS-90 does not apply once the federally mandated minimum levels have been satisfied.
Now the 6th Circuit Court of Appeals (serving Michigan, Ohio, Kentucky and Tennessee) is the only Federal Appellate Court to follow the Empire Fire decision. State Courts throughout the 6th Circuit have relied upon Empire Fire and its subsequent progeny for expansive readings of the MCS-90 Endorsement. Now that the 10th Circuit has destroyed its own creation, those cases that relied upon Empire Fire as their linchpin should similarly crumble.