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THEAITORNEY GENERAL 

OPTEXAS 

Gerald C. Mann 

Hon. Il. L. Mllliken 

I~nsurance Expert 

Aus~liu 11. TJCXASI 

Opinion No. O-179 

Re: Construction of Form 77 - Motor 

Motor Transport Division 

Railroad Commission of 

Truck Public Liability Insurance Endorsement relating .to coverage of 

Texas 

Austin, Texas 

trucks not described in policy 

Dear Mr. Mllliken: 

We are pleased herewith to comply with your request under date of January 18 for a construction of Form 7’+“Motor Truck 

Endorsement-Texas Railroad Commission-Restricted Form” relating 

to the liability of the insurer under a public liability insurance 

policy contalnlng said endorsement for trucks operated by the insured not specifically described in said policy. 

It is our opinion that all trucks operated by the insured (whether specifically described in the policy or not, and provisions in the policy proper to the aontrary notwithstanding) 

would be covered by a public liability policy containing Form 77 

endorsement so as to make .the insurer liable to third person for 

Injury to person or property occasioned by the operation of said 

trucks while used in carrying property for hire in Texas. We believe this result is accomplished by the following paragraph of 

Form 77: 

“Coverage granted by the policy applies to all 

trucks and trailers belonging to or under the dlrection of the named insured, whether particularly identified in the policy or not, while same are being 

used in the business of carrying property for hire 

or compensation and coming within the terms of the 

statutes, abov~e referred to, and it is agreed that,. 

subject to the policy limits, this policy covers the 

liability imposed by law upon the named insured for 

injury to or death of persons, other than the named 

insured or his employees, and loss or damage to property, other than the property of the named insured, 

or of his ‘employees, through such operation of such 

trucks and trailers within the boundaries of the 

State of Texas, even though, such trucks or trailers 

may not be specifically identified herein anything 

in the policy or endorsements thereto to the 

notwithstanding.” 

contrary 
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Hon. R. L. Milliken, page 2 (O-179) 

Form 77, when attached to and executed by the Lnsured 

becomes a part of the contract between the insurer and the assured as fully as though written into the policy proper, and 

superpedee any provisions in the policy proper which conflict 

therewith by virtue of the following provision of the. endorsement: 

(‘Any provision, eltherh the body of the policy 

to which this endorsement is attached or in any other 

endorsement thereon or attached thereto, now or hereafter, In conflict with or contrary to the provisions 

of this endorsement, shall be deemed to be cancelled 

hereby.” 

As stated in the first paragraph of Form 77, the pur ose 

of the endorsement is to. effectuate the purposes of Chapter 31 f: ,

General and Special Laws of the 4lst Legislature of Texas, 1929, 

and amendments thereto5 being designated as Article 911b Revised 

Statutes, and more particularly Section 13 thereof. 

It may be noted that Form 77 also provides that the insurer shall be entitled to reimbursement from the insured for “any 

loss -involving any automobile or trailer not described in the policy or endorsements thereto which has’ been in operation for a 

period of more than ten (10) days without an endorsement having 

been requested therefor”, but this provision does not limit or diminish the Insurer’s liability to the injured third party. 

The construction of the very paragraph of Form 77, first 

above quoted was under consideration in the case of Park et ux. 

v. American s ldelity & Casualty Co. Inc., 92 Fed.(2d) 746, decided 

by the Federal Circuit Court of Appeals for the 5th Circuit in 

1937. In this case the insurer sought to avoid liability under 

the policy which contained the provision that It did “not cover 

any loss arising or resulting from an accident occurring while any 

of said automobiles were -.-being driven or operated by any person 

other than the assured or his paid employee.” The plaintiff relied upon the endorsement (Form 771, which was attached to the policy, and the court held that it prevailed over the conflicting provisions above quoted in the policy proper. Judge Sibley In a 

concurring opinion said: 

“The rider expressly extends coverage to all trucks 

operated ‘under the direction and control’ of the assured. In the suit against the assured, which was DDEfended by the insurer, the jury in a special verdict expressly found the truck was operated under the d#rection 

and control of the assured. On general principles of 

estoppel by judgment the insurer cannot again contest that 

issue with the plaintiffs.” 
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Hon. R. L. Milliken, page 3 (O-179) 

We believe this decision is controlling 

struction of Form 77 which we have given herein. 

Yours very truly 

ATTORNEY GENERAL 

in the conOF TEXAS 

By /s/ Walter R. Koch 

Walter R. Koch, Assistant 

APPROVED: 

Gerald C. Mann 

ATTOBNEY GENERAL OF TEXAS 

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