Finding insurance in truck crash cases: in collisions caused by commercial motor carriers, the federally mandated MCS-90 endorsement means your client may be able to collect insurance from unexpected sources.

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Imagine that you represent a client who is injured when a tractor-trailer crashes into his car. You receive a default judgment when the truck driver, who also owns the tractor, fails to answer the complaint. You then write to the insurance company for the owner of the trailer, and ask the insurer to pay the judgment.

The insurer asserts that it owes your client nothing because (in addition to other arguments) it never knew about the accident and only found out about it when you sent notice of the judgment. You file a declaratory judgment action against the insurance company and win. You collect all the money owed to your client.

Scenarios like this are occurring across the country. The facts above are taken from an actual New York Court of Appeals decision, Pierre v. Providence Washington Insurance Co. (1) In most situations, failure to give notice of a claim to an insurance company defeats coverage. But the scenario described above isn't like most situations. It's a collision involving a commercial motor carrier, which means your client has the benefit of the federally mandated Motor Carrier Safety (MCS)-90 endorsement attached to the policy.

Case law in this area is growing as lawyers begin to recognize the importance of the MCS-90 endorsement and a growing number of courts are finding that a permissive user of a tractor-trailer is an insured. This means that you can collect from the insurer of the trailer's owner, the company loading the trailer, or the company shipping the goods.

Your client maybe entitled to coverage even if the vehicle isn't listed in the policy, even if the defendant doesn't cooperate with his or her insurance company, and even if the policy has been canceled.

In the first half of the 20th century, interstate motor carriers refused to accept financial responsibility for accidents caused by the negligence of drivers of their leased trucks. To address this situation, the Interstate Commerce Commission (ICC) promulgated rules that established, as a matter of law, that a motor cartier/lessee assumes the exclusive possession, control, and use of the leased vehicle. A motor carrier could no longer sidestep responsibility by asserting that it was not responsible for the negligence of independent contractors. (2)

In the second half of the century, motor carriers and insurance companies looked for new ways to avoid liability. In response, the government adopted even stronger provisions to further protect the public. One of the strongest is the MCS-90 endorsement, mandated as part of the Motor Carrier Safety Act of 1980. (3)

The MCS-90 endorsement is most easily understood as an unconditional suretyship to the public that must be attached to an interstate motor carrier's liability policy. (4) The public policy consideration underlying the MCS-90 endorsement is, as explained in Pierre, "to provide a safety net to members of the public injured as a result of negligent operation of …