Form MCS-90 – Financial Responsibility for Motor Carriers

Download: Form MCS-90 – Financial Responsibility for Motor Carriers

Financial responsibility means having insurance policies or surety bonds sufficient to satisfy the minimum public liability requirement. Public liability means liability for bodily injury, property damage and environmental restoration.  Environmental restoration means restitution for the loss, damage or destruction of natural resources arising out of an accidental discharge of toxic or other environmentally harmful materials of liquids.

The MCS-90 Endorsement;

Background:

The MCS-90 is a result of the Motor Carrier Act of 1980, carrier deregulation was a part of a sweeping deduction in price controls, entry controls and collective price setting in  US transportation that started in the 1970’s and ended when President Carter signed it into law on 7/1/1980.

It was envisioned to be a sweeping de-regulation of the trucking, railroad and airline industries to remove 45 years of excessive & inflationary Government restrictions and red tape and to have an anti-inflationary effect to reduce consumer costs and to conserve hundreds of millions of gallons of fuel.

Congress meantime became concerned with increased truck traffic & non-conformance with trucking regulations and began a debate (of course) to address these concerns.  At the same time,  the DOT conducted a random roadside inspection of commercial vehicles traveling on I-80 in Pennsylvania and the results were pretty staggering.  More the HALF of the commercial vehicles were placed out of service due to safety violations.

As a result of the debate and the informal study, Congress passed the MCA of 1980 (the Act) which by 1990 resulted  in the number of licensed carriers exceeded 40,000 – more then double the number in 1980.

The MCS-90 Endorsement: No Coverage? No Problem!

In order to get the trucking & insurance industries compliant with the Act’s mandated levels of financial responsibility, Congress created the MCS-90 endorsement.  It is essentially an endorsement that makes the insurer a surety to the public.

The Act requires the MCS-90 endorsement to be attached to ANY liability policy issued to motor carriers operating commercial vehicles that are transporting property in interstate or foreign commerce. (49 C.F.R. 387.3, 387.7)

The form is attached to a truckers coverage form, commercial auto form or business auto policy, depending on the form used by the insurer.  Usually, when a loss occurs, the motor carrier’s vehicle is listed in the declarations or is otherwise covered by the policy and the insurance contract itself provides the necessary coverage to protect the public.  Occasionally, as a result of underwriting errors, policy terms, insolvency or illegal trucking operations, a vehicle will have no coverage and the MCS-90 endorsement is triggered.

Policy Issues:

The purpose of the endorsement is to ensure adequate levels of insurance in the event of an accident involving a member of the public on the environment.  The MCS-90 creates a surety-ship by the insurer to protect the public when the insurance policy to which the MCS-90 is attached otherwise provides no coverage to the insured. (Canal Ins Co v Distribution Servs., Inc. 5th Cir. 2001)

In effect, the endorsement shifts the risk of loss for accidents occurring in the course of interstate commerce away from the public by guaranteeing that an injured party will be compensated even if the insurance carrier has a valid defense based on a condition in the policy. So Coverage Defenses DO NOT APPLY – the insurer is ultimately on the hook for any final judgment.

The MCS-90 does not however create any obligation on the part of the insurer to defend it’s insured for claims not covered by the policy, however a failure to defend may result in a default judgment and then the MCS-90 endorsement creates absolute liability on the part of the insurer to satisfy the judgment up to the policy limits listed on the endorsement.

Subrogation is Allowed:

If the insurer ultimately pays on a judgment where no coverage exists, there is a clause in the endorsement that “the insured agrees to reimburse the company for any payment made on account of any accident, claim or suit involving a breach of the terms of said 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 the endorsement” (49 C.F.R. 387.15)

In theory the insurer can recover from the insured but they cannot commence recovery efforts until after they make payment, which is often years after the loss and the insured can file bankruptcy or transfer it’s assets to avoid paying any judgment the insurer receives.

Some MCS-90 Interpretations:

The MCS-90 creates a duty to indemnify an insured for non-covered autos operated under the motor carrier’s authority  (John Deere Ins. Co v Nueva, 95h Cir 2000)

Without a lease between an owner/lessor and motor carrier/lessee, an insurer will not be required to indemnify the motor carrier for any judgment against the owner/lessor  (Jackson v O’Shields, 5th Circ 1996)

The obligations of an insurer to indemnify it’s insured also extend to any liability deductibles or self-insured retentions the insured may carry.

( David N Nissenberg, The Law of Commercial Trucking: Damages to Persons and Property 3rd Ed 2003)

Truck Accident Claims Reporting and Handling

It seems that one of the more consistent areas of needed improvement for truckers, whether large fleet, small fleet or owner operators, is in the approach to claims reporting. This writer, who actively receives claims, has seen the gambit in claims reporting from well documented detail to virtually no information provided at all.

So what’s the big deal?  Why collect any information at all, especially if there will be a police report available anyway? The answer to these questions is not always obvious to the truck driver who is feeling threatened by the consequences, regardless of whether the accident was the driver’s fault.

Approximately 30% of truck accidents are never reported by truck drivers. Most of those “non-reports” are not-at-fault accidents and the drivers just “presume” the other party will take care of their own damages. Many, however, are the result of a driver either embarrassed about the incident or hopeful it will just disappear. Finally, quite a number of these non reported accidents are the result of the driver just not knowing what to do.

Accident reporting is simple. Just about every insurance company and/or agent provides an accident report form directly to the motor carrier or driver. That form is the basis for collecting information about the accident and all drivers should carry that form in their truck. It is the responsibility of fleet safety personnel to make sure the form is in all trucks and that drivers are continuously trained on how to complete it.

At the time of any collision, fire, theft, or other loss, the driver should take a deep breath and go into, what I call, “the data collection mode”. This should be a non-emotional, fact gathering, state of mind. There should be no admitting or blaming for wrong doing with other parties. The driver should immediately grab the accident report form and begin asking questions and documenting information.

The first, and most obvious, is to assess whether anyone is hurt including the other driver and anyone else involved. Assuming the other driver has not been hurt and can actively participate in obtaining details, he/she should get themselves, all other parties, and the vehicles out of harm’s way if at all possible.

Once safely out of danger, the driver should note the date, time, and specific location of the occurrence on the report form. Also write down the description of the other vehicles involved, license plate numbers, and note how many people were in other vehicles.  Again, document this information on the report form. Before the police arrive, the driver should courteously approach the other parties and invite them to assist by exchanging contact information including name, address, phone numbers, email addresses, and insurance information.   No discussion of who was at fault should occur as that only leads to everyone becoming defensive and uncooperative. If the driver has a camera, or phone equipped with one, it is advisable to take pictures of everything.

After exchanging information, the driver should clearly write out an honest description of what occurred along with a graphic diagram of the incident. Doing so will help everyone visually understand the nature of the verbal and written details. Once this has been completed, the fleet safety manager (if applicable), a representative from the insurance company, and/or the insurance agent should be contacted.

Generally, the biggest stumbling block we run into is with the driver not moving quickly to obtain the above information, and then when police arrive and separate the parties, it’s too late for the driver to obtain the much needed information.

Claims that are reported immediately and with complete information are almost always settled at a lower cost than those that are not reported quickly and with detail. All drivers should make sure they carry the claim report form in their vehicles at all times.    

LA /Long Beach Harbor Clean Truck Program

Developments on the LA/Long Beach Harbor Clean Truck Program

Since 2008, the Port of Los Angeles Clean Truck Program has had the goal to make the surrounding area eco-friendly. Additional updates have been made throughout the years, and if you are wondering where the project stands now, here are the basics you need to know.

Timeline of the Project

The Clean Truck Program is actually one component of a much larger plan referred to as the Clean Air Action Plan. This plan was developed in 2006, and authorities in both Los Angeles and Long Beach came together to attempt to reduce the number of carbon emissions in the atmosphere. Aggressive milestones were put into place to make the trucks that come into the Long Beach Port more energy efficient.

In 2008, the port banned all trucks that were using engines  made in 1989 or older. In 2010, additional measures were taken to prevent truck engines made between 1989 and 1994 from entering the port. Another provision was added to limit truck engines produced between 1994 and 2003 that did not receive eco-friendly retrofits. Finally, in 2012, trucks could only enter the port if they met all specifications stated in the 2007 Federal Clean Truck Emissions Standards. The goal of these measures is to get companies to invest in more recently made vehicles that produce far fewer emissions than trucks in the past.

Concession Program

A big part of this plan was the development of the concession program. This program creates a relationship between the port and the licensed motor carriers. This program allows the owners of the vehicle to obtain funding and grants to phase out old, inefficient trucks. Since its implementation, the program has helped over 900 licensed motor carriers get new vehicles.

Success of the Program

Many people who heard about this program years ago may be wondering how successful it has been. In the first year alone, the program reduced emissions at the port by nearly 70 percent. By 2012, that number rose to 80 percent. As a result, the program has been extremely successful in achieving its goals, and many companies have moved over to using cleaner vehicles. This is advantageous for both the companies and the people in the community who live in the vicinity of the port.

While more work is required, the Port of Los Angeles Clean Truck Program is an excellent start. With the great success it has seen, hopefully more programs can be implemented in the future to make Los Angeles and Long Beach greener cities.