1

United States Court of Appeals

Fifth Circuit

FILED

April 04, 2007

Charles R. Fulbruge III

Clerk

REVISED April 23, 2007

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 06-40911

_______________________

JASON WELLS,

Plaintiff-Appellee,

versus

GULF INSURANCE CO.,

Defendant-Appellant.

__________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

__________________________________________________________

Before REAVLEY, DEMOSS, and BENAVIDES, Circuit Judges.

REAVLEY, Circuit Judge:

The issue here is whether an endorsement—the form of which is prescribed by the

Motor Carrier Act’simplementing regulations—requires an excess insurer to drop below its

liability floor and pay a judgment when it is the first solvent insurer. The district court
1

49 U.S.C. § 13906(a)(1); 49 C.F.R. § 387.7(a). 

2

49 C.F.R. § 387.7(d).

3

§§ 387.7(d)(3) and 387.9.

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thought so. We disagree and reverse.

I.

The Motor Carrier Act of 1980 (the “Act”) and its implementing regulations require

carrierslike Defendant-Appellant Builder’s Transport, Inc. (“BTI”) to demonstrate that they

are in some way insured against damage they cause.1 A carrier can fulfill its responsibility

by 1) a form MCS-90 endorsement attached to a contract of insurance, 2) a surety bond, or

3) self-insurance.2 BTI satisfied the Act through self-insurance up to $1 million.3 BTI then

entered into excess insurance contracts with Reliance Insurance Company (“Reliance”), Gulf

Insurance Company (“Gulf”), Royal Indemnity Company (“Royal”), and Federal Insurance

Company (“Federal”). Under self-insurance and its excess insurance contracts, BTI was

insured as follows:

$0 – $1 million — BTI (self-insured)

> $1 million – $3.782 million — Reliance (subject to $1.782 million annual

deductible)

> $3.782 million – $16.782 million — Gulf

> $16.782 million – $26.782 million — Royal

> $26.782 million – $36.782 million — Federal 

Jason Wells was injured in an accident involving a truck that BTI operated. Wells
4

§ 387.7(d)(1).

5

§ 387.7(d)(3). However, as discussed below, the form contemplates that it will in some

circumstances be used in excess insurance contracts.

6

§ 387.15 (emphasis added).

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sued BTI and obtained a $417,771 judgment, but BTI’s bankruptcy thwarted execution.

Wells then tried to collect the judgment from Reliance, but a Pennsylvania commonwealth

court declared Reliance insolvent. Finally, Wells sued Gulf. Gulf’s excess insurance

contract withBTI contained the MCS-90 endorsement, which the regulations prescribe when

an insurance contract is a carrier’s method for satisfying the $1 million minimum financial

responsibility requirement,4but which was unnecessary because of Wells’ self-insurance.5

Wells’ theory of liability was that the endorsement’s language placed Gulf in the position

of a surety because it wasthe firstsolvent insurer, and therefore it was liable from dollar one

of the judgment.

The MCS-90 form endorsement follows:6

The policy to which this endorsement is attached provides

primary or excess insurance, as indicated by "X", for the limits

shown:

9 This insurance is primary and the company shall not be liable

for amounts in excess of $ ______ for each accident.

9 This insurance is excess and the company shall not be liable

for amounts in excess of $______ for each accident in excess of

the underlying limit of $ ______ for each accident.

The insurance policy to which this endorsement is attached provides

automobile liability insurance and is amended to assure compliance by the

insured, within the limits stated herein, as a motor carrier of property, with
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sections 29 and 30 of the Motor Carrier Act of 1980 and the rules and

regulations of the Federal Motor Carrier Safety Administration.

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 isspecifically described in the

policy and whether or not such negligence occurs on any route or in 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. It is understood and

agreed that no condition, provision, stipulation, or limitation contained in

the policy, this endorsement, or any other endorsement thereon, or violation

thereof, shall relieve the company from liability or from the payment of any

final judgment, within the limits of liability herein described, irrespective of

the financial condition, insolvency or bankruptcy of the insured. However,

all terms, conditions, and limitations in the policy to which the endorsement

is attached shall remain in full force and effect as binding between the insured

and the company. The insured agrees to reimburse the company for any

payment made by the company on account of any accident, claim, or suit

involving a breach of the terms of the policy, and for any payment that the

company would not have been obligated to make underthe provisions of the

policy except for the agreement contained in this endorsement.

Wells argued in his motion forsummary judgment that the endorsement meant that Gulf was

obligated to pay the judgment because it was the first solvent insurer of any kind, primary

or excess. The district court agreed and entered summary judgment for Wells.

II.

We review the district court’s summary judgment and its interpretation of the
7

280 F.3d 532, 536 (5th Cir. 2002).

8

§ 387.7(d)(1); see also Kline v. Gulf Ins. Co., 466 F.3d 450, 452 (6th Cir. 2006) (“. . .

Builders Transport self-insured up to the minimum coverage, and Gulf did not need to [include

the endorsement.]”).

9

§ 387.309. 

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endorsement de novo. Schneider Nat'l Transp. v. Ford Motor Co.

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The district court relied primarily on public policy considerations in holding that the

endorsement’s language that purports to excise any provision that would limit recovery by

an injured third party renders an excess insurer’s policy primary as a matter of law when it

is the first solvent insurer. We do not see a federal public policy that would compel the

district court’s construction because the Act allows for self-insurance and does not require

the MCS-90 in this contract.

The MCS-90 endorsement is only required when an insurance policy is used to satisfy

the Act.8 Federal public policy appears unconcerned with the possibility of an insolvent but

self-insured carrier, for the only assurance the regulations require is the Federal Motor

Carrier Safety Administration’s satisfaction that the carrier is qualified.9“When

‘self-insurance’ is involved, there is no security for the protection of the public other than

the self-insured's financial strength . . . .” Commentary on Final Rule, 46 Fed. Reg. 30974,

30981 (June 11, 1981). It necessarily follows that under this scheme, there may be

circumstances in which an injured party will not be able to recover from a self-insured

carrier. We are therefore unpersuaded that federal public policy favors—much less

compels—the district court’s construction.
10 § 387.15 (emphasis added). 

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III.

The resolution of this case depends entirely on the terms of the MCS-90 endorsement.

We begin with the boxes at the top of the endorsement. The endorsement here had the

second box checked and read:

This insurance is excess and the company shall not be liable for amounts in

excess of $1,000,000 for each accident in excess of the underlying limit of

$1,000,000 for each accident.

Wells explains that this part of the form is intended not to change the later language that

overrides the underlying policy excess limits, but to allocate the responsibility among

insurance companies—it would clarify how two insurers divide coverage of the required

guarantee, for example, if each insurer insured a $500,000 policy. That, of course, does not

explain why Gulf’s policy filled $1,000,000 in the blanks. While the language here may be

confusing, it does clearly deny excess coverage below $1,000,000, and that argues against

imposing primary coverage on Gulf under any circumstance.

The endorsement continues: “In consideration of the premium stated in the policy .

. . the insurer (the company) agrees to pay, within the limits of liability described herein any

final judgment recovered against the insured . . . regardless of whether or not each motor

vehicle is specifically described in the policy [and regardless of where the negligence

occurs].”10 The endorsement specifically retains the policy’s liability limits—that is, the

policy’s monetary parameters. What the endorsement alters are coverage limits—that is,
11 930 F.2d 258, 260 (2d Cir. 1991).

12 868 F.2d 357, 362–63 (10th Cir. 1989).

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vehicles and persons insured, conduct insured against, and the like. The Second Circuit

recognized this in Integral Ins. Co. v. Lawrence Fulbright Trucking, Inc.,

11 where it stated

that “[t]he policy provided coverage only for scheduled vehicles, but the trailer was not

included on the schedule. The policy, however, also included an MCS-90 endorsement,

which extends the insurance coverage to all motor vehicles owned by [the insured],

regardless of whether the vehicle is listed on the schedule.” Further, the court rejected the

insurer’s argument that it did not owe indemnity because its insured was not negligent. Id.

Commentators also recognize this effect of the endorsement. 1 WILLIAM E. KENWORTHY,

TRANSPORTATION SAFETY AND INSURANCE LAW § 19.02, at 19-13–19-14 (3d ed. 2006); 2

DAVID N.NISSENBERG,LAW OFCOMMERCIAL TRUCKING § 14.07, at 789 (3d ed. 2003);John

K. Gisleson, Prosecution of Fraud and Civil RICO Claims in the Involuntary Insurance

Market, 29 TRANSP. L. J. 1, 3 (2001). And this coverage limit alteration is consistent with

the endorsement’s purpose. 

The endorsement, originally promulgated by the Interstate Commerce Commission

(“ICC”), was directed at trucking companies’ practice of using leased or borrowed vehicles,

which often resulted in evasion of safety requirements and confusion about financial

responsibility for damage caused by the operation of the vehicles. Empire Fire & Marine

Ins. Co. v. Guar. Nat'l Ins. Co.

12 The endorsement “had its origin in the ICC's desire that the
13 § 387.15 (emphasis added).

14 Id.

15 466 F.3d 450 (6th Cir. 2006).

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public be adequately protected when a licensed carrier uses a leased vehicle to transport

goods pursuant to an ICC certificate.” Id.

The endorsement also providesthat “no condition, provision,stipulation, orlimitation

contained in the policy [or] this endorsement . . . shall relieve the [insurer] from liability or

from payment of any final judgment, within the limits of liability herein described . . . .”13

But even thislanguage retainsthe “limits of liability described herein” clause. The retention

of that clause can have no meaning at all if the surrounding language is read to excise the

policy’s liability limits. 

Further, the endorsement clearly provides that the insurer must pay the described

judgment “irrespective of the financial condition, insolvency or bankruptcy of the insured

. . . [but] [t]he insured agrees to reimburse the [insurer] for any payment . . . that the [insurer]

would not have been obligated to make under the provision of the policy except for the

agreement contained in this endorsement.”14 The district court focused on this language, but

read it in isolation. Under the endorsement’s coverage limit alteration, the insurer is required

to pay a judgment even if, for example, the policy does not list a vehicle as covered. The

endorsement thus broadens the insurer’s duty to pay, and the insured incurs a duty to

reimburse the insurer.

The Sixth Circuit has decided this same question in Kline v. Gulf Ins. Co.

15 and
16 Id. at 452.

17 Id. at 455.

18 Id.

19 409 F.3d 256 (5th Cir. 2005).

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concluded that the endorsement did not require Gulf to drop below its liability floor. In

Kline,

16 the plaintiff obtained a $3.2 million judgment against BTI. Under BTI’s insurance

arrangement, BTI would have paid $2 million (self-insurance of $1 million plus a $1 million

dollar deductible under its policy with Reliant), Reliant as first excess insurer would have

paid $1 million, and Gulf as second excess insurer would have paid $200,000. Because of

BTI’sinsolvency, however, the plaintiff only received $1.2million—$1million fromReliant

and $200,000 from Gulf under their respective policies. The plaintiff sued Gulf and argued

that it should be liable from dollar one based on the endorsement. The district court

disagreed, and in affirming, the Sixth Circuit held that the “limits of liability described

herein” clause preserved the policy’sliability limits.17 The Sixth Circuit also recognized that

the purpose of the endorsement is to ensure compliance with the regulations and that

regardless of BTI’s insolvency, since it was self-insured, the purpose of the regulations was

satisfied.18

In contrast, the cases Wells relies on in support of his theory involve MCS-90

endorsements necessary to satisfy the Act or primary insurance policies. In TravelersIndem.

Co. v. W. Am. Specialized Transp. Servs.,

19 the carrier satisfied the $5 million minimum

responsibility level with both primary and excess insurers, requiring the endorsement in the
20 242 F.3d 667 (5th Cir. 2001).

21 59 F.3d 281 (1st Cir. 1995).

22 868 F.2d 357 (10th Cir. 1989).

23 17 F.3d 1018 (7th Cir. 1994).

24 930 F.2d 258 (2d Cir. 1991).

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excess insurer's policy. In T.H.E. Ins. Co. v. Larsen Intermodal Servs.,

20 there was a

reimbursement dispute after the insurance company paid the claim. Canal Ins. Co. v.

Carolina Cas. Ins. Co.,

21 and Empire Fire & Marine Ins. Co. v. Guar. Nat'l Ins. Co.,22 both

involved a dispute between two insurers where one insurer's policy contained endorsement

and the other's did not. In Am. Inter-Fidelity Exch. v. Am. Re-Insurance Co.,

23 an insured

failed to pay its insurer reimbursement, and a reinsurer disputed its duty to pay the insurer.

And Integral Ins. Co. v. Lawrence Fulbright Trucking, Inc.,

24 involved a federally mandated

MCS-90 endorsement in a primary insurance policy. These cases are therefore inapposite.

IV.

We join the Sixth Circuit and hold that where an excess insurer’s coverage is not

required to satisfy a carrier’s minimum level of financial responsibility under the Act, the

form MCS-90 endorsement does not require the excess carrier to satisfy a judgment below

its liability floor simply because it is the first solvent insurer. 

Accordingly, we reverse the district court’s judgment and render judgment for Gulf

Insurance Company.
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REVERSED and RENDERED.