Insurance Coverage and Conflicting Interpretations of the MCS-90

By Lilly, James R. | Defense Counsel Journal, October 2007 | Go to article overview

Insurance Coverage and Conflicting Interpretations of the MCS-90


Lilly, James R., Defense Counsel Journal


COMMERCIAL vehicles engaged in interstate commerce have been federally regulated for over seventy years. Interstate carriers have been required to establish proof of financial responsibility, and assume responsibility for leased vehicles, for fifty years. Central to this regulation of interstate commerce is the premise that an innocent victim is entitled to prompt compensation from an easily identifiable responsible party. While Congress has effectively eliminated the confusion as to liability arising from accidents caused by leased vehicles operating in interstate commerce, its failure to designate the ultimate source of recovery for injured members of the public insurance--has resulted in confusion and delay in the compensation of claimants. In addition to failing to achieve adequate protection of the public, this omission has placed enormous weight on invariably complex choice of law determinations that would have been moot had Congress achieved the uniformity critical to the regulation of interstate carriers.

I. Legislative History

The Interstate Commerce Commission ("ICC"), established by Congress in 1887, is "conventionally cited as the first of the modern administrative agencies." (1) In 1935, the United States Congress amended the Interstate Commerce Act in an effort to reduce danger to the public inherent in the unregulated use of vehicles in interstate commerce. (2) Further regulation occurred in the 1950s, when Congress, in an effort to protect the public from the confusion surrounding responsibility for accidents involving vehicles leased to interstate carriers, placed responsibility for the control and operation of such vehicles on the carrier. (3) "Significant aims" of this amendment included eliminating the difficulties inherent in fixing financial responsibility for damage and injuries to members of the public. (4)

Congress created the Department of Transportation ("DOT") in 1966 and, in so doing, transferred some of the ICC's authority to the new department. (5) In particular, the DOT acquired responsibility for the regulation of safety and the operation of equipment by commercial motor vehicle carriers. (6) Fourteen years later, the Interstate Commerce Act was comprehensively reformed through the Federal Motor Carrier Act of 1980. (7) The Motor Carrier Act was a further effort by Congress to limit confusion as to liability arising from accidents caused by leased vehicles. (8)

Prior to 1996, the ICC and the DOT had concurrent regulatory jurisdiction over vehicles weighing 10,000 pounds that transported non-hazardous materials. (9) Where a carrier established its federally mandated proof of financial responsibility through an insurance policy, the ICC required the incorporation of an endorsement, the BMC-90. (10) The DOT created its own version of the BMC-90, the MCS-90. (11) To eliminate the inherent redundancy of multiple forms performing the same function, the ICC adopted the MCS-90 form. (12)

The ICC was disbanded pursuant to the ICC Termination Act of 1995. (13) Pursuant to the Termination Act, the ICC's responsibilities were transferred to either the DOT proper, or to its newly established Surface Transportation Board. (14) The Secretary of Transportation continued in his regulatory role until the Motor Carrier Safety Improvement Act of 1999, (15) at which time Congress transferred all "duties and powers related to motor carriers or motor carrier safety vested in the Secretary" to another newly formed agency of the DOT, the Federal Motor Carrier Safety Administration ("FMCSA"). (16) The FMCSA carries out its rule-making function through the dissemination of the Federal Motor Carrier Safety Regulations (FMCSR). (17)

Notwithstanding the tumultuous litany of federal entities presiding over the regulation of interstate carriers, the regulations themselves have remained essentially the same since the Motor Carrier Act of 1980, albeit revised and renumbered. …

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