United States District Court 

for the 

Southern District of Florida 

Leonardo Acanda, Plaintiff,

v. 

National Indemnity Company of the 

South, Defendant.

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Civil Action No. 22-22720-Civ-Scola 

Order 

 This matter is before the Court upon the Plaintiff’s motion for a judgment 

on the pleadings. (ECF No. 17.) The motion has been fully briefed and is ripe for 

review. (ECF Nos. 17, 18, 19.) It is denied for the reasons below. (ECF No. 17.) 

1. Background

This action comes on the heels of a default judgment that the Plaintiff 

secured against the Defendant’s insured, Golden Trucking LLC (“Golden”), in the 

Eleventh Judicial Circuit Court of Florida. The Plaintiff sued Golden for bodily 

injuries that he suffered during a crash while aboard one of its tractors. 

After specifically finding that “the facts stated in the complaint are true 

and accurate and the liability allegations well pled and admitted as true by the 

Defendants[,]” (ECF No. 1-3), the State court awarded the Plaintiff $1,008,172.04 

in damages, plus interest. 

The Defendant was not a party to that suit. So, now, the Plaintiff seeks a 

declaration from this Court determining the Defendant to be liable for that 

amount, pursuant to the terms of Golden’s insurance policy, which the 

Defendant issued. More specifically, the Plaintiff seeks that declaration under an 

endorsement in the policy that is required by the Federal Motor Carrier Safety 

(“FMCS”) regulations, 49 C.F.R. §§ 387 et seq., known as the MCS-90. It says, in 

relevant part, as follows: 

“In consideration of the premium stated in the policy to which this 

endorsement is attached, the insurer (the company) agrees to pay, 

within the limits of liability described herein, any final judgment 

recovered against the insured for public liability resulting from 

negligence in the operation, maintenance or use of motor vehicles 

subject to the financial responsibility requirements of Sections 

29 and 30 of the Motor Carrier Act of 1980 regardless of whether 

or not each motor vehicle is specifically described in the policy 

and whether or not such negligence occurs on any route or in 

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any territory authorized to be served by the insured or elsewhere.

Such insurance as is afforded, for public liability, does not apply

to injury to or death of the insured’s employees while engaged in

the course of their employment, or property transported by the

insured, designated as cargo.”

(ECF No. 1-1 at 10.)

The Defendant says that the terms of the MCS-90 endorsement do not 

require it to compensate the Plaintiff despite the judgment against Golden. The 

Plaintiff naturally disagrees. Asserting this dispute to be one of contractual 

interpretation, the Plaintiff has moved for a judgment on the pleadings under 

Federal Rule of Civil Procedure 12(c).

2. Legal Standard

Under Rule 12(c), “[a]fter the pleadings are closed—but early enough not to 

delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P. 

12(c). “Judgment on the pleadings is proper when no issues of material fact 

exist, and the moving party is entitled to judgment as a matter of law based on 

the substance of the pleadings and any judicially noticed facts.” Cunningham v. 

Dist. Attorney’s Office, 592 F.3d 1237, 1255 (11th Cir. 2010). “In determining 

whether a party is entitled to judgment on the pleadings, the Court accepts as 

true all material facts alleged in the non-moving party’s pleading and must view 

those facts in the light most favorable to the non-moving party.” Roman v. Spirit 

Airlines, Inc., 482 F. Supp. 3d 1304, 1311 (S.D. Fla. 2020) (Ruiz, J.), aff’d, No. 

20-13699, 2021 WL 4317318 (11th Cir. Sept. 23, 2021) (cleaned up). Further, a

motion for judgment on the pleadings is subject to the same analysis as a 

motion to dismiss pursuant to Rule 12(b)(6). See Hawthorne v. Mac Adjustment, 

Inc., 140 F.3d 1367, 1370 (11th Cir. 1998).

3. Analysis

Before addressing the merits, the Court takes up the Plaintiff’s suggestion

that the Defendant is foreclosed from arguing that the MCS-90 endorsement

does not apply. The Plaintiff says that the Defendant was aware of the 

underlying litigation “two weeks before Plaintiff filed his underlying complaint.” 

(ECF No. 19 at 7.) So, according to him, it is not entitled “to raise any defense to 

the plaintiff’s claim that it could have raised” in the underlying action. See

Gallagher v. Dupont, 918 So. 2d. 342, 347 (Fla. 5th DCA 2005).

However, the default judgment does not have that preclusive effect here. 

Most courts treat “the insurer’s obligation under the MCS-90 endorsement as 

one of a surety.” Nat’l Spec. Ins. Co. v. Marin-Vegue, 644 F. App’x 900, 906 (11th 

Case 1:22-cv-22720-RNS Document 20 Entered on FLSD Docket 01/24/2023 Page 2 of 4
Cir. 2016). In turn, “[w]here it is not made to appear that the surety knew of and 

had opportunity to defend the [underlying] suit, then the judgment is [only]

prima facie evidence that the surety is liable, sufficient to support a verdict 

unless it is rebutted by proof on the part of the surety that it was obtained 

through fraud or collusion, or that the loss or liability created by the judgment 

arose from acts other than those indemnified against under the conditions of the 

bond.” Heritage Ins. Co. of Am. v. Foster Elec. Co., Inc., 393 So. 2d 28, 29 (Fla. 3d 

DCA 1981) (emphasis added) (cleaned up) (quoting Lake Cnty. ex rel. Baxley v. 

Mass. Bonding & Ins.Co., 75 F.2d 6 (5th Cir. 1935)).

Although the Defendant may have known about the underlying litigation, 

the record before the Court is unclear as to whether the Defendant had an 

opportunity to defend against it—particularly because the Defendant was not a 

party. So, at least for purposes of this motion, the Defendant may, indeed, 

challenge its liability under the State court judgment by arguing that the liability 

results from circumstances other than those it agreed to “indemnif[y] against”

under the MCS-90 endorsement. See id.

With that matter resolved, the Court turns to the merits. As seen above, 

the endorsement clearly excludes liabilities stemming from “injury to[,] or death 

of[,] the insured’s employees while engaged in the course of their employment.” 

(ECF No. 1-1 at 10.) Thus, the controlling question is whether: (1) the Plaintiff 

was a Golden employee that (2) was engaged in the course of his employment. 

The Defendant seems to miss the latter point. It argues: first, that the 

Plaintiff was a Golden employee (but that only addresses one part of the inquiry), 

and second, that he was not a member of the public. (ECF No. 13 at 4.) The 

latter argument apparently arises from the fact that the endorsement provides 

coverage only for “public liability.” But the argument is unconvincing. The 

endorsement defines “public liability” to mean “liability for bodily injury, property 

damage, and environmental restoration.” (Id.) By its plain wording, the term does 

not mean “liability stemming from actions involving only non-employees.”

So, the Defendant’s only colorable argument is its first, which, again, only 

addresses part of the inquiry. Nevertheless, the Plaintiff responds by positing

that the State court ruled him to be a “passenger” when it found the factual 

allegations in his complaint to be true. This is because the State court complaint 

alleged that the Plaintiff was “asleep in the back of the tractor” and that he “was 

an authorized passenger[.]” (ECF No. 17-1 at ¶¶ 22-23.) However, those 

allegations are not dispositive. 

Nothing about a plain reading of the State court documents suggests that 

a person’s being an “authorized passenger” is mutually exclusive of that person’s 

also being an employee. Nowhere does the State court complaint explicitly allege

that the Plaintiff was not a Golden employee, and nowhere did the State court 

Case 1:22-cv-22720-RNS Document 20 Entered on FLSD Docket 01/24/2023 Page 3 of 4
make such a finding. In fact, the FMCS regulations do sometimes consider 

drivers—who may well be “employees”—to be “passengers.” See 49 C.F.R. 

§ 390.3(f)(6). By consequence, the question of whether the Plaintiff is subject to 

exclusion as an employee would remain even if the Defendant were bound to 

accept that the Plaintiff was a passenger. Because the pleadings do not 

conclusively establish that the Plaintiff was not an employee, a material issue of 

fact exists, which precludes a summary disposition at this juncture.

To complicate matters further, the FMCS regulations define an “employee” 

to mean a person other than an “employer, who is employed by an employer and 

who in the course of his or her employment directly affects commercial motor 

vehicle safety.” 49 C.F.R. § 390.5 (emphasis added). Nothing in the pleadings 

establishes whether the Plaintiff’s role “directly affect[ed] commercial motor 

vehicle safety.” Id. That is a material factual gap that the Court cannot ignore.

And again, whether the Plaintiff was an employee is only part of the 

inquiry. If he was an employee, equally important is the question of whether the 

Plaintiff was “engaged in the course of [his] employment,” as excluded by the 

endorsement’s language. The Plaintiff seems to build much of his case on the 

fact that he was asleep during the crash. Yet, additional factors may inform the 

import of that fact. Was the Plaintiff on a paid break while he was asleep? Was 

he scheduled by Golden to be onboard the truck? Was the Plaintiff sleeping on 

company time?

As shown, the record before the Court is insufficiently developed for it to

entertain a summary disposition of this matter at this juncture.

4. Conclusion

Because material facts have yet to be established, a judgment on the 

pleadings is improper. The Plaintiff’s motion is denied. (ECF No. 17.)

Done and ordered in Miami, Florida, on January 23, 2023.

________________________________

Robert N. Scola, Jr.

United States District Judge

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