our position here before the court of appeals at the district court by granting summary judgment and declaring that trust art insurance the appellee in this case had no obligation to satisfy any judgment which the plaintiffs slush opponents might obtain and the underlying case in south carolina against ross card the reason the district court ruled that way is because it believed that there was another matter kariya had its own insurance policy they could pay for a judgment against that motor carrier not because of the public policy purpose behind the endorsement so there was no need for truscott our deposit to pay under its endorsement the reason we believe that's incorrect is because there's no such exception either in the terms of the endorsement or the statute or nature of surety basically the way this indorsement is set up is to be a gap between the insurance that a motor carrier can get and what federal regulations require a motor carrier have for the protection of the public it operates as a surety agreement so what happens is the insurer will a judgement on behalf of its insured but didn't seek reimbursement from its insured the language of that endorsement is that trust card agrees to pay any judgement obtained against michael brown who is the motor vehicle carrier in this case resulting from the negligent operation maintenance or use of a commercial motor vehicle so that is the expressed language of the surety agreement contained in the m c s ninety form which is an endorsement of part of the insurance policy the contract card and the motor carrier we think that's clearly implicated in this case because the motor vehicle accident which underlies this case was a truck a trailer truck owned by one company a trailer owned by another company but the entire a truck was operating under the i c c motor carrier number of michael brown who does business as triple s transport who has a policy with trust car and so we think that there are three avenues t liability for michael brown for this accident i know and i want to clarify that because in our briefing we suggested that there might be four but there are thirty one is responding superior one is negligent hiring training or attention and one is negligent they gent and that he might be responsible for both of those and then you pled that brown might be the owner operator i didn't see any allegations about negligent entrustment the right thing maybe i know where snow just played maybe you i believe they're in there but i'm happy to supplement correct but the point of that is that there are three potential avenues towards a judgment against michael brown which would be a judgment against him as a motor carrier resulting from the negligent operation maintenance or use of a motor vehicle so there is a real potential for this kind of stop or say and ask a question that had gotten a lot of attention but i'm sort of concerned about it and that's sort of why did district court exercise its discretion on the declared  that to hear this case at all so if we look back and you cite a few of these cases both from the th circuit in the th circuit you raise the issue below but particularly it seems like where we have a state court action addressing many of the same issues nicely the same issues even some one certainty about tort law and a lot of uncertainty frankly about the facts i still have no idea moreas or what moore is doing here that this seems like precisely the kind of case where our previous decisions like ten america and otherwise suggest that we of it i think that's fair that suggests that a district court although it has discretion here the dischord didn't exercise that discretion one way or the other just went forward without any explanation of that of whether they were choosing to do so or not brown but that williams could not be held liable and a judgment and therefore his policy not be rendered against him i believe that is a theoretical possibility that there could be a judgment against just brown and not mcwilliams obvious is the plaintiff's attorneys we hope that doesn't happen but what it is a theory b to me articulate a theoretical story that that would take place so one theoretical story is i'm not where i understand you the plaintiff's lawyer this in your view i'm just trying to understand as a theory well part of litigating a case or a jury trial is sometimes the result the jury reached on exactly mesh with any theory so one theory is that there's no three but that's the verdict that the jury renders that's their number one but there are three causes of action not superstrong but the point is it's possible and because it's possible that means there could be a judgment just against brown and not against mcwilliams that's why it's important also to carefully scrutinize what trust art is saying what it says there's coverage of the underlying incident and support to be more particular but that we're actually saying is that if there's a judgment against mcwilliams mcwilliams policy would pay the judgment against mcwilliams in the event i think that judge quite a bit was after is if there's a judgment just against brown and not against that williams there will not be coverage into th policy there will not be coverage under the truscott policy for michael brown and in c s ninety and certain would certainly be implicated in that situation and so for that reason alone it was improper for the trial court to the district court to gran judgment and make that declaration and i don't want you to go outside of the record so i want to be a little careful about that but you mention that there's a two thousand and seventeen complaint ali at the one from two thousand and sixty but based on the record can you tell me anything about who and what james moore and general ling guard had to do with this my understanding is that the tow truck was picking up since trying to drivers and those two individuals were the stranded drivers that were being picked up a tow truck that's my understanding i'm not promising that's what this decision doesn't apply is because in that case the motor carrier who had a judgment against it had other insurance and so because it's a surety relationship if somebody satisfies a judgment against that motor carrier on behalf of that motor carrier in the obligation there's no obligation to provide surety because the minimum amount have been met that's different from a situation like the case we quoted which is herod where there are more than one motor carriers but each motor carrier has an independent obligation to satisfy a judgment against it under the financial responsibility regulations which is to say that just the fact that another motor carrier satisfies a judgment that it doesn't leave you as a motor carrier from sounds like it doesn't get yourself in or doesn't lea surety i'm sorry just went when you said that about the two motor carriers you may already have addressed this but i am having trouble just getting my hands around what's going on here is it is it clear from what we have of a factual record here that there are two motor carriers in this case yes things for brown don't they become one motor carrier for purposes of the regulation in for purposes of this accident well that's a factual question that's developed right now which is are there different carriers of the joint ventures right now we don't know whether we have t motor carriers for purposes of the case you're talking about there we think we probably have to but it's not for sure ok and there could be three because there's also a motor carrier that owns the trailers so there's a lot but the big might only have one  it's possible but i think it's very unlikely because there are situations where one motor carrier will provide the truck and another motor carrier will provide the driver not to also be the case here where mcwilliams provides the truck but brown is treated as providing mcwilliams by giving him his credentials so it could be a case where you have driver and truck or each and motor carrier and there are two so is is it theoretically possible there's only one up perhaps but it's pretty unlikely i may just be mis understand the regulation but so if if nick williams is working for brown transporting something for brown those are still two different motor carriers for purposes of this accident and this regulation i don't know an exact answer to question so i'm not going to say that i know for sure question in some sense would turn on the nature of the agency relationship yes your honor and would have to look to state law to determine what the nate if there's an agency relationship which we've sort of assumed here which may or may not be accurate i know you think it is but you colleague in allendale probably will not write but if there's agency and the nature of that agency relationship will ultimately be what determines judge harris question is how many motor carriers there are twelve or three yes i think that will be decided about when we talk about that agency relationship even if ultimately the state court action doesn't resolve in some affirmative manner of this precise question we're asking absolutely your honor and that's correct and so based on that it is our position that there is the potential for a judgment against michael brown to which the surety obligation could apply so it was incorrect or at the very least premature to gratz from a judgment made the declaration this is issue judge there was a one million dollars policy on mr mcwilliams truck who was driving and was involved in x and he owned it he was driving to the one million dollars on that there were multiple people involved in this accident one who was killed a couple who were seriously clearly seriously injured and then a couple more with varying degrees of injury that i'm not that familiar with though we recognize for trust recognized from the outset that the one million dollars polic implicated so the issue when me and williams policy right yes yes so between and i want to stay in the record the idea behind the declaratory judgment action was to resolve whether there was another one million dollars at play otherwise litigating all of those cases litigating multiple personal injury cases when there were potentially no other assets that anybody could collect would be fruitless that would be more fruitless and having the court address the issue of coverage up front it's that issue and i thought about that issue was dressed in a case which is it's brief but it's not one for f s up nine hundred and eighteen which is mccomb versus national casualty and the court addressed the very concerned that you addressed and it's you know where you clearly don't have enough coverage and where it may be appropriate sometimes to determine the coverage issue in advance so just  had that's fine but i can look in the can't me to do to defend is a very different question when you talk about a surety where we don't we plainly don't have a duty to defend i think the declaratory judgment analysis looks quite different it was versus national casualty and who just so i know who decided that was decided in the north district of illinois and i didn't find anything i was more on point on that i appreciate you pointed out so a couple of a couple of things and the appellant to counsel before the th circuit is not the balance counsel who handled the motion for s and they're not the ones handling the underlying accident case so a couple issues in their brief i just want to stress one st we dispute that there's more than one motor carrier in this case and  address that issue briefly but we it's our position that there's only one motor carrier and there's no evidence to the contrary there's mr brown's d o t number and that's it number two there is a statement  an agency relationship could exist separate from that i agree with that statement that's it's possible that he could be driving for and that will play into whether you can have more than one motor carrier operate transporting goods in interstate coverage at the time of the accident two and let me pause before i get to two we believe and i think i'll show that a further understanding of the facts is not actually necessary for this court to affirm judge chiles decision with that said as i prepared i looked at the case and i thought it would probably be easier for the court of appeals if some more of the facts have been developed i would submit that it's a pure legal issue that can be decided on what's on the record but there are things that aren't in the record the record is a little murky on some facts or some things that are disputed by generous well well the actual testimony of the people who were involved in the underlying advance is not one hundred percent they don't agree with each other on every issue so we didn't get into those facts because we don't believe that it's necessary to decide this particular issue the one other thing i would address and i don't i don't know if this is going outside of the record the amended complaint was filed as an exhibit to the complaint for declarator relief it's exhibit a and it was let me make sure i'm not misstating something i think this is the operative complaint this is the two thousand and sixteen complaint i'm looking at that  that's what i'm looking at as well i think i have it but i will stay on the record there is a statement in the appellant's brief that it's an contradicted that the vehicle was involved into interstate commerce at the time of the accident that's not an contradicted i won't address it further but that's not an that's not on can contradicted and there's no evidence as to whether there was anything on that car trailer at the time that it was actually pulling off of the interstate so these are the facts that we think are relevant mcwilliams was operating his own truck at the time of the accident he was pulling a trailer that was owned by somebody named iran marri a car trailer not like a tractor trailer thing he's pulling off the side of the road he gets rear ended trust gordon sure some four million dollars the federal congress decided that the minimum coverage on a car or a vehicle like it is a seven hundred and fifty thousand dollars he had more coverage than that the only way that when congress enacted the motor carrier transport act in  one of the concerns that it had was that motor carrier slots just say you know joe smith trucking or hiring independent contractors who would lease their trucks to them or or you know they would have some arrangements a u haul this lo for me across the country they would drive over somebody there would be they did have adequate coverage or any coverage and the trucking company motor carrier policy didn't provide any coverage because it was a listed vehicle there the direct insurance policy says we'll cover these listed vehicles so as part of solving that problem congress set all right one from now on we're going to attach to everybody every motor carriers registered motor carriers policy well there's a couple ways to do it but in this way and m c s nine this is a surety if there is a judgment against your insurer operating out of the ownership maintenance or use of a vehicle your up your ownership maintenance or use of a vehicle th of motor vehicles not your motor vehicles night me listen i understand the purpose right but if we won't talk about what this means which i hope you do i do there's no your in there didn't mean to in the statute either i mean that with think you're getting that judge richard is talking about is what may be the purpose and i've read about that but it does not appear that the purpose is reflected in the language of either the endorsement or the statute so are you asking us to insert terms that are not in the black and white language of the indorsement or the statute i agree with your statement and when you read it it is less than clear but no i'm not asking you to insert terms other than the overwhelming weight of case law authority which explains what the purposes and explains why it doesn't apply to everything and so we have to go to and i  think yes your b and appreciate your candor that to get to that result we do have to look beyond that actual language to cases that articulate the reason for the language yes your honor i agree one hundred percent and i wish it weren't the case but it is so one of the cases that we both cited to and that was discussed at length in the brief this harrod versus wilshire wilshire was an insurance company h d was a lady named harold was unfortunately killed in a motor vehicle accident there was a truck tractor trailer called trucking that was pulling a tractor the tractor was owned by a company named esben she she said we shouldn't have to pay anything because the insurance company for the tractor that cause this accident the driver that causes accident eight dollars more than the mandatory minimum of seven hundred and fifty thousand dollars the herod said no that's not the case because they own and distractor i mean they own this trailer essman she actually owned a trailer so the court of appeal actually remained it to the district court to say well was esben sheet acting as a motor carrier when there tractor was involved in this accident and ultimately the court said no they are acting as a motor carrier and therefore dempsey yes ninety isn't implicated what i think that's important about the point that you were making earlier judge harris is this and i don't mean to be flip but for the m c s ninety to apply to mr brown he had to have been acting as a motor carrier he can he didn't own vehicle he wasn't maintaining the vehicle he wasn't using the vehicle he wasn't exercising any control over the vehicle there the only evidence in the record is that there was no lease agreement between these people there was no contract agreement between them for reasons that aren't in the record mcwilliams had his d o t placard in his truck that's the only way that he can become liable in a way that would implicate the m c s ninety cover so tell me why in the language of the rider you get that principle that brown must be acting as a motor carrier for this to be implicated it didn't seem to say that the m c s ninety only by regulation only applies to motor carriers who  are registered motor carriers and it's and it's applied specifically for the purpose of insuring that trucks that they use provide coverage i don't want to i don't want to neglect to address the point that  it follows that when the protection of injured members of the public is not at stake m c s nineteen the relevant federal regulations do not address coverage for the purposes of disputes between insured and insurers it's clear that while where i c regulations require the carrier or certified insurer to protect the loss the public from loss due to negligence acts the regulations do not alter or if what or effect obligations john deere versus new wave  itself i mean the st paragraph right before the language about the agreement to pay says the insurance policy and it goes on to say a few things that sales and the rd line as a motor carrier property inciting the stat sheet and  o your point that it applies to a motor carrier yeah i think you may have some support in the language that it gets to the question of whether we know right now whether or not there's only one motor carrier  is can we do can we make a decision that this point when there's possibilities that there might be more than one way that you understand my question i do understand your question and i think the answer is yes and  this is why brown didn't i mean i hate to be a dead horse brown didn't own maintain or operate any vehicle in this accident he can only be a motor carrier  by the virtue of some theory which they haven't articulated in their pleadings that mcwilliams was driving for him in some way that's the only way exactly i mean but that seems like exactly the theory that you said going back to the purpose of this whole system is that you've got a motor carrier who's like using independent contractor and we don't want to discourage liability by doing that so the purpose might be articulated and at least there's some suggestion i mean we got one page of a deposition transcript where midway him seemed to suggest that he was driving for brown and we know exactly what that means but whatever it means there's a theory by which that's what's happening here then in that context why would that mean there's still only one you could have a motor carrier that is serving as an independent contractor for a nd motor carrier there the m c s ninety would not be implicated because mcwilliams truck has the mandatory minimum of insurance so that's a different question so that's a stature interpret a contract interpretation question but it doesn't answer the separate question of why we necessarily must find only a single motor carrier right if brown was a motor carrier and he hired mcwilliams as an independent contractor and i'm obviously making up all kinds of facts right but assume that scenario why why could that not be at least theoretically that there are two motor carriers in there one who's employing an independent contractor mot straight but if brown the guy who's not driving the truck is a motor carrier at all it's because sort of he takes on mitt williams's identity because he hired rightly right because otherwise he's not a motor carrier he's sitting at home when this accident happens right or he's right i didn't think both of them could be motor carriers in this scenario if the reason brown is a motor carrier is because mcwilliams is pulling something around for him under these facts i agree with that statement in a brown's not a motor carrier m c s not he doesn't apply so what bothers me and maybe this goes back to just right where we started is we're basically the district court was being asked to answer a question what happens if there is to motor carrier is but one of the motor carriers is already insured can you does the endorsement come into play as to the nd motor carrier but we don't even know that we have to motor carriers here but we don't we don't have to know because i know but it seems right so we could answer it is as they did in that other case we could answer it as a matter of law if it turns out that there were two motor carriers the nd one is not going to be on the hook by virtue of this endorsement and then send it back in c does any of this have anything to do with what happened in this case i would i would submit that we would say the we don't have to know the answer to the question because the carrier that was driving the truck had seven or had a minimum limit i understand  so we could answer to the legal question presented as the district court did its just that it may turn out to be entirely beside the point if there is only one motor carrier in this case it would just be answering a legal question that would turn out not to to concede that but i would say i would go back to mccomb versus national county and say we're going to litigate to all these right cases over decision so you so to that point it may have understand some practical benefits to the parties so they can figure out if they could sell this case or what sort of money they have i'd get that i wasn't that far removed from those sort of discussions but to your point isn't isn't the  issue don't you don't you have to answer if it's possible that there are two motor carriers don't you have to answer the contractual interpretation question as to the a motor carrier i don't i'm not certain that i understand the question and that it gets a little byzantine these cases and i may not ask be asking it well on apologize for that but i thought we were just in response a judge hears this question you were saying we don't have to decide right now if there is only one motor carrier or not i think he believes they are there is based on the record only one because brown wasn't using operate and retain i get that but if there or if there is a finding that there are t o i think you said that doesn't matter we can still decide and you base that on the availability of coverage under the williams policy and i think that requires a conclusion that the that the endorsement doesn't apply if there's other available coverage which i understand but don't see in the language of the documents i would base it on the fact that the m c s ninety would not apply to fran under those circumstances because he just not owning he doesn't maintain he isn't owning maintaining or using the vehicle that's involved in this accident thank you not pas yes or i keep you have it for more you've been extremely helpful and i'm very appreciative that the statements made i think it was judge harris but i want you tell me where i'm looking to find it that you must be transporting in order to be a motorcade i want to come back to this question of that that's all only one of them can be a motor carrier that if i'm using an if i'm a motor carrier and i'm using independent contractor a whole load across the country once i've got a principle an independent contractor that only one of them can we make sure the big trucking company i make sure that you have mandatory met federal insurance and if i do that of satisfied the act and its purpose as i mean i totally get that my questions differ when i just want to know purely as a definition when i'm like writing something down and i got principle and i got independent contractor can i use the term motor carrier to describe both of them i understand your argument about the  contract i'm just saying literally or is the independent contractor and the principal are they both motor carriers under the motor carrier act of one thousand nine hundred and eighty or is there some reason that only one of them can be quote unquote transporting the property at a time i think they can both be registered motor carriers and have their own deity numbers but i think under the circumstances here only one of them could be actually transporting the property i think the reg don't the regulations define a motor carrier to include a motor carrier in each and i mean this goes back to the state law up but right but but then so if the motor carrier includes the agent the person you hired to pull the stuff there's still one motor carrier and not two separate motor carriers under the regulation rogers i believe s to be the case but if i sit here and tell you look at the line there's a lot of thank you thank you o to apply but we don't know there's two more carriers so let's send it back to the district court to see if there's two more carriers so there's a variety of options here we could send it back to the district court for it to exercise its discretion and just sit on the case for a while or you could send it back to the district court to ascertain whether there are more than one motor carriers in which case this case could move forward and we would ascertain that issue so they can answer this question or you could just reverse completely and i would be our preferred result but either the remount options i  think the middle one my also addressed my opposing counsel is concern which is the case could go forward while the district court decides you know if there are one or two motor carriers and do a little bit discovery that the district on the stand the possibility underlying court place so it would be our preference to the district court action is is stated in his discretion declines to issue declaratory judgment i'm just offering that as another potential compromise but i do think that one of those two are necessary because i think that the district court did get the ultimate legal issue and correct as this court in our insurance versus district service that the correct way to read the endorsement is to be faithful to the expressed language of the doors so the idea of saying well there's this general public policy and so we should make an exception is not the way that the court has in the past instructed us to read or sometimes and i also think that correctly construing the purpose is also important because there is general purpose which is to ensure that people are not injured by uninsured motor carrier but there's the more specific way in which that purpose is accomplished expressed in the text of the statute in the regulation which is that every motor carrier has to be responsible for judgments against itself and that's expressed very well and harried which is where the court the th circuit lays out what the point of this m c s ninety surety is that each more carrier fact that they are is no limitation in the endorsement or the statute to some exception if other insurance is available the only exception to the warren that the th circuit recognized and forget what it is you eat which is that basically under the principles of surely law if somebody else has satisfied the debt of the motor carrier on behalf of the motor is not stacking insurance right because the brown piece brown still on the hook for it i mean it williams insurance means midway and walks away he's done brown now he may not be had to pay it but in theory he's still got the judgment against it's not really insurance it's a separate sure it's a surety agreement trusts are consumed him for every penny but of course will go bankrupt reality that's the nature of that agreement so my point there is to say that the express language