United States Tenth Circuit

In an action by an insurer seeking a declaration that it had no liability to plaintiffs under a general liability policy, judgment for defendants is reversed where the MCS-90 endorsement in the policy was intended to impose a surety obligation on the insurance company, and thus when an injured party obtains a negligence judgment against a motor carrier, an insurer's obligation under the MCS-90 endorsement is not triggered unless: 1) the underlying insurance policy (to which the endorsement is attached) does not provide liability coverage for the accident; and 2) the carrier's other insurance coverage is either insufficient to meet the federally-mandated minimums or non-existent.

Appellate Information

• Decided 09/03/2009
• Published 09/03/2009

Judges

• TYMKOVICH, Circuit Judge., Before HENRY, Chief Judge, TACHA, KELLY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, McCONNELL,TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.

Court

• United States Tenth Circuit

Counsel

• For Appellant:
  
• R. Clay Porter, Dennis, Corry, Porter & Smith, L.L.P., Atlanta, GA (Beth R. Holck, Dennis, Corry, Porter & Smith, L.L.P., Atlanta, GA; Heinz J. Mahler and Stephen D. Kelson, Kipp and Christian, P.C., Salt Lake City, UT, with him on the briefs), for Appellant., H. Thomas Byron III, Appellate Staff Attorney, United States Department of Justice, Civil Division, Washington, DC (Michael F. Hertz, Acting Assistant Attorney General, Brett L. Tolman, United States Attorney, and Scott R. McIntosh, Appellate Staff Attorney, United States Department of Justice, Civil Division, Washington, DC; Rosalind A. Knapp, Acting General Counsel, Paul M. Geier, Assistant General Counsel, David K. Tochen, Acting Chief Counsel, Debra S. Straus, Attorney, Federal Motor Carrier Safety Administration, United States Department of Transportation, Washington, District of Columbia, with him on the brief) for Amicus Curiae.


• For Appellees:
  
• Jesse C. Trentadue, Suitter Axland, PLLC, Salt Lake City, UT, for Appellees.