* Honorable Lawrence E. Kahn, of the United States District Court for the Northern District of New York, sitting by designation. 10-4569-cv Lyons v. Lancer Insurance Co.

UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2

- - - - - - 3 August Term, 2011 4 (Argued: November 16, 2011 Decided: May 21, 2012) 5 Docket No. 10-4569-cv 6

_________________________________________________________ 7 THOMAS E. LYONS and CELESTE M. LYONS, 8 Plaintiffs-Appellants , 9

- v. - 10 LANCER INSURANCE COMPANY, 11 Defendant-Appellee

. 12

_________________________________________________________ 13 Before: KEARSE and RAGGI, Circuit Judges , and KAHN, District Judge *

. 14 Appeal from a judgment of the United States District Court for the Southern District 15 of New York, dismissing complaint seeking a declar ation that federal law requires defendant insurer 16 to satisfy an unpaid judgment entered in favor of plaintiffs in a negligence action against defendant's 17 insured for an accident that occurred on an intrastate trip. See2010 WL 6442153 (Oct. 20, 2010). 18 Affirmed. 19** Senior Judge of the United States District Court for the District of Connecticut, sitting by designation. 2 EDWARD J. CARROLL, Kingston, New York, for 1 Plaintiffs-Appellants

. 2 ROY W. VASILE, Merrick, New York (Curtis, Vasile, 3 Merrick, New York, on the brief), for Defendant4 Appellee

. 5

KEARSE, Circuit Judge : 6 Plaintiffs Thomas E. Lyons ("Mr. Lyons") and Celeste M. Lyons (collectively 7 "Lyons"), who were awarded a judgment in August 2006 in a state-court negligence action (the 8 "Negligence Action Judgment") against T.F.D. Bus Company ("TFD" or "T.F.D."), one of whose 9 buses had struck a vehicle operated by Mr. Lyons, appeal from a judgment of the United States 10 District Court for the Southern District of New York, Warren W. Eginton, District Judge ** , dismissing 11 their complaint seeking a judgment declaring that defendant Lancer Insurance Company ("Lancer"), 12 an insurer of TFD, is obligated to pay each plaintiff $5,000,000 or more in satisfaction of the 13 essentially unpaid Negligence Action Judgment, and ordering Lancer to pay those amounts. The 14 district court granted Lancer's motion for summary judgment dismissing the complaint on the ground 15 that the relevant insurance coverage was limited to interstate trips and that the TFD bus trip that 16 resulted in Mr. Lyons's injury was a trip wholly within New York State. On appeal, plaintiffs contend 17 that the district court erred in granting summary judgment against, rather than for, them, arguing 18 principally that the bus that struck the Lyons vehicle was supposed to have been traveling on an 19 interstate mission. For the reasons that follow, we affirm the judgment of the district court. 203 I. BACKGROUND 1

The relevant facts do not appear to be in dispute. The following description of the 2 events is taken largely from the statement each side submitted pursuant to Local Rule 56.1 ("Rule 56.1 3 Statement") in connection with Lancer's motion for summary judgment, and from the undisputed 4 evidence underlying the district court's summary judgment opinion, Lyons v. Lancer Insurance Co. , 5 No. 7:07-cv-7095, 2010 WL 6442153 (S.D.N.Y. Oct. 20, 2010) ("District Court Opinion"); seeid

. 6 at *1 n.1 ("Because the parties agree about most facts underlying this dispute, the Court will accept 7 all cited evidence, except for any logical or legal conclusions contained in the various statements."). 8

A. TFD and the February 14, 1989 Accident 9 In 1989, TFD, which ceased business operations in 2007, was a private interstate 10 common carrier based in Mount Vernon, New York, au thorized to provide commercial transportation 11 of passengers in any of the conti guous States of the United States. Some 85 percent of its revenues 12 came from operating school buses pursuant to contracts with nearby school districts in New York 13 State, principally for public schools in Mount Vernon, New Rochelle, and Yonkers. TFD owned 14 90-odd vehicles, including yellow school buses, othe r buses, cars, and minivans. The yellow school 15 buses were also used for other purposes, such as private charters that represented approximately five 16 percent of TFD's business. 17 During 1989, Michael A. Thomas ("Thomas" or "Michael Thomas") was employed 18 by TFD as a bus driver. In the 1988-89 school y ear, Thomas was regularly scheduled by TFD to 19 transport students to and from Emerson Junior High School ("Emerson" or "Emerson J.H.S.") in 20 Yonkers, picking them up every morning from three or four specified locations in Yonkers, and 21 returning them to those locations each afternoon after picking them up from Emerson. 224 On the afternoon of February 14, 1989, Thom as drove a TFD yellow school bus with 1 seating capacity for 44 adult passengers, which TFD called "bus 287," to Emerson Junior High School 2 and picked up students to transport them to the us ual drop-off locations. At approximately 2:51 p.m., 3 before reaching the first drop-off location, bus 287 collided with the vehicle operated by Mr. Lyons, 4 which was stopped at a red light. As a result of the accident, Mr. Lyons sustained injuries that 5 prompted plaintiffs to commence personal injury litigation against Thomas and TFD. Following, inter 6 alia , a default by TFD in 1992 and a jury trial in 1999 on issues of damages, plaintiffs eventually 7 obtained, to the extent pertinent here, the August 2006 Negligence Action Judgment against TFD, 8 which awarded them a total of $2,470,000, plus interest from 1992. That judgment remains 9 essentially unsatisfied. 10

B. The Present Action 11 Federal law required that a motor carrierfor hire engaging in the interstate 12 transportation of passengers, e.g. , transportation between a place in a State and a place in another 13 State or between two places in the same State but passing through another State, provide evidence of 14 financial responsibility. SeeBus Regulatory Reform Act of 1982, Pub. L. No. 97-261, § 18, 96 Stat. 15 1102, 1120 (1982) ("Bus Act" or "Act") (codifiedas amended at 49 U.S.C. § 10927, note (1988), 16 renumbered49 U.S.C. § 31138 in 2006 Code). The Act provi ded that the Secretary of Transportation 17 (or "Secretary") would establish regulations setting minimum permissible levels of financial 18 responsibility and that, not later than three years after the effective date of the Bus Act, the minimum 19 with respect to a vehicle having a seating capacity of 16 or more passengers would be $5,000,000. 20
SeeBus Act §§ 18(b)-(c). 215 Such financial responsibility could be established by evidence of insurance, seeid

. 1 § 18(d), reflected in an insurance policy endor sement on "Form MCS-90B," 49 C.F.R. § 387.31(d)(1). 2 That form stated that the insurer agreed to pay, within the limits of the policy to which the 3 endorsement was attached, "any final judgment recovered against the insured for public liability 4 resulting from negligence in the operation, maintenance or use of motor vehicles subject to the 5 financial responsibility requirements of Section 18 of the Bus Regulatory Reform Act of 1982 , 6 regardless of . . . whether or not such negligence occurs on any route or in any territory authorized 7 to be served by the insured or elsewhere." 49 C.F.R. § 387.39 (Illustration I) (emphasis added). In 8 1989, TFD's buses, including bus 287, were insured by Lancer. The Lancer-TFD insurance policy 9 ("Policy") included the required Form MCS-90B endorsement as quoted above. 10 In 2007, with the Negligence Action Judgment essentially unsatisfied by TFD, 11 plaintiffs commenced the present action against Lancer seeking a judgment under federal statutory 12 law, including the Bus Act and regulations promulgated thereunder, declaring Lancer obligated to 13 satisfy the Negligence Action Judgment entered in their favor against TFD (Federal Complaint 14 ¶¶ 1-3), and ordering Lancer to pay each plainti ff $5,000,000 or more. Plaintiffs alleged principally 15 that "at the time of the accident," TFD bus 287 "was being used for hire as an interstate transporter" 16 (id . ¶ 12), "during interstate commerce" (id . ¶ 13), and that Lancer was thus obligated by the federally 17 mandated Form MCS-90B endorsement to pay the Negligence Action Judgment. 18 Following a period of discovery, both sides moved for summaryjudgment. Plaintiffs, 19 in support of their contention that the 1989 acci dent occurred while bus 287 was being used on an 20 "interstate" trip, submitted affidavits from Thom as and from former TFD vice president Albert M. 21 Groccia, and excerpts from depositions of Thomas and Groccia taken in 2009. 226 Groccia testified that on the morning of February 14, 1989, TFD had provided charter 1 service to a group of senior citizens in MountVernon, taking them to Armonk, New York. (See 2 Deposition of Albert M. Groccia, January 30, 2009 ("Groccia Dep."), at 41-42.) TFD was supposed, 3 that afternoon, to send a bus to Armonk, arriving th ere at 2 p.m., to bring that group back to Mount 4 Vernon. (Seeid . at 42-43, 44.) Although both Mount Ve rnon and Armonk are within New York 5 State, the most efficient route between the tw o included several miles on Interstate Highway 684 6 ("I-684") (seeid . at 11-13), and part of that stretch of I-684 was in the State of Connecticut (seeid

. 7 at 13). Groccia testified that that wa s the route he would have recommended (seeid . at 13, 97-100); 8 and Thomas stated in his affidavit that on the occasions when he had driven buses between Mount 9 Vernon and Armonk--before and after the date of the accident--he had "always followed [TFD]'s 10 recommended route," which passed "through the State of Connecticut" (Affidavit of Michael A. 11 Thomas dated June 8, 2009 ("Thomas Aff."), ¶ 4). 12 Although Groccia testified that he had "[n]o idea how" Thomas came to be the operator 13 of bus 287 on the afternoon of the accident (Groccia Dep. 9; seeid . ("I don't know how he became 14 the operator")), Groccia proceeded to testify that on the afternoon of February 14, 1989, Michael 15 Thomas was supposed to have driven bus 287 to Armonk to pick up the senior citizens at 2 p.m. and 16 bring them back to Mount Vernon, rather than to pick up students from Emerson Junior High School 17 in Yonkers (see , e.g. , id . at 10-11, 14-15, 39, 44). Groccia stated that if Thomas had gone to Armonk 18 to pick up the senior citizens, he w ould not have been in Yonkers. (See , e.g. , id . at 39, 40, 45.) He 19 also testified that although bus 287 was used "for all kind[s] of work" (id . at 12), it lacked a Yonkers 20 permit that would have authorized it to operate within that city (seeid . at 27). 21 Thomas was employed by TFD for some 20 y ears beginning in 1982. He testified that 22 he sometimes drove charter buses for TFD and th at his regular duty in 1989 was to transport the 237 Emerson students to and from school . The designated Emerson J.H.S. route was entirely within the 1 City of Yonkers. Thomas's "job was to take that route every day." (Deposition of Michael A. 2 Thomas, January 30, 2009 ("Thomas Dep."), at 17; see also Groccia Dep. 33 ("Michael Thomas was 3 assigned to the Emerson run").) Thomas "knew automatically to go to Emerson . . . Junior High 4 School at [sic ] the afternoon and pick up a bus load of kids." (Thomas Dep. 14.) 5 Thomas testified that when there was to be a charter trip, a TFD dispatcher would 6 normally give a driver a dispatch "ticket" (id . at 18) instructing him "where we have to go, who to 7 pick up, so forth" (id . at 11; see , e.g. , id . at 19-20, 23). Thomas did not think he was given a dispatch 8 ticket for a charter trip on February 14, 1989. (Seeid . at 19.) He testified, "I just heard something 9 I was to get a ticket, I didn't ge t it. That's all I heard." (Id . at 18.) Accordingly, on the afternoon of 10 February 14, 1989, Thomas began his usual routin e of picking up the students from Emerson in 11 Yonkers. He drove bus 287, which was the bus he had driven to take the students to school that 12 morning (id . at 30-32). 13 In support of their motion for summary judgment against Lancer, plaintiffs argued that 14 Thomas's trip to pick up the students from Emerson in Yonkers was part of his trip to pick up the 15 senior citizens from Armonk. In support of that argument, plaintiffs submitted an affidavit from 16 Groccia dated June 4, 2009, stating that although bus 287 was not scheduled to travel through the City 17 of Yonkers, "due to a misunders tanding, Michael A. Thomas also transported a group of students 18 through that city, while operating that bus on its interstate routeto Armonk." (Affidavit of Albert M. 19 Groccia dated June 4, 2009, ¶ 6 (emphases added).) However, in their own proffer of undisputed 20 facts, plaintiffs also quoted the following depos ition testimony of Groccia who testified that an 21 identical statement appearing in a prior affidavit was not accurate: 228 Q. . . . . The last sentence of that paragraph . . . states . . . [d]ue to a 1 misunderstanding, Michael A. Thomas also transported a group of students 2 through that City, meaning Yonkers, whileoperating that bus on its interstate 3 route to Armonk . Is that statement accurate ? 4
A. No . He was dispatched to go to Armonk. He was dispatched, that's 5 the way it should have read. He was dispatched to go to Yonkers -- Armonk. 6 Q. Understood. 7 A. He went to Yonkers instead of the dispatch to go to Armonk . . . -- 8

. . . . 9 Q. . . . [E]xactly what is it that you know Michael Thomas did on the 10 day that this accident occurred? 11 A. He didn't follow dispatch. He went to Yonkers

. 12 (Groccia Dep. 114, 116 (emphases added).) 13 Groccia also testified that he had no reason to believe that Thomas had driven on any 14 part of I-684 that day: 15 Q. Okay. At any time during that experience, was there any 16 information that you ever received that would indicate to you that at any time 17 that day Michael Thomas was on any portion of Interstate 684? Did you learn 18 any information ever that on that day while in a TFD Bus, Michael Thomas 19 was driving on Interstate 684? 20
A. No. 21 (Groccia Dep. 116; see also Thomas Aff. ¶ 6 ("I found out later th at I had been instructed by 'T.F.D[.]' 22 to simply make the return trip of adults from Armonk, New York to Mt. Vernon, New York. I should 23 have simply left Mt. Vernon and traveled directly on the above described route to Armonk, New 24 York."); Groccia Dep. 45 ("if [Thomas] went to Armonk, he wouldn't have been in Yonkers").) 25 Lancer cross-moved for summary judgment inits favor. In its Rule 56.1 Statement of 26 facts as to which it contended there was no genuine issue to be tried, it asserted, inter alia , (a) that 279 "Michael Thomas did not drive Bus No. 287 to Armonk at any time on February 14, 1989" (Lancer 1 Rule 56.1 Statement ¶ 15); (b) that "[i]nstead, Mi chael Thomas drove that bus along the route he 2 usually drove for TFD, specifically, the Emerson Junior High School route" (id . ¶ 16); (c) that "[t]he 3 Emerson J.H.S. route had specific stops along a designated course entirely within the City of 4 Yonkers" (id . ¶ 17); and (d) that "[a]nother driver and another bus undertook to transport the senior 5 citizens back from Armonk to Mt. Vernon" (id . ¶ 20). Plaintiffs expressly admitted all four of these 6 assertions, although they argued as to paragraphs 15, 16, and 20 that the reason that Thomas did not 7 drive to Armonk--and the reason that another TFD bus was dispatched on that mission--was that 8 Thomas's trip was interrupted by his bus's collision w ith the Lyons vehicle. They also argued that the 9 reason Thomas went to Emerson was that he erred in not carrying out TFD's intent that he drive to 10 Armonk on a foreseeable trip through the State of Connecticut. 11

C. The District Court's Decision 12 The district court denied plaintiffs' motion for summary judgment and granted the 13 summary judgment motion of Lancer. The court noted plaintiffs' contention "that Thomas's 14 transportation of the student[s] was erroneous and part of a larger interstate trip," and Lancer's 15 contrary contention "that the Emerson trip and th e Armonk-Mount Vernon trip were two separate and 16 distinct trips." District Court Opinion, 2010 WL 6442153, at *2. The court discussed the above 17 testimony that TFD had dispatched Thomas to Armonk and observed that in fact 18 Thomas did not go to Armonk that day. Instead, he drove a bus route 19 for Emerson Junior High School in Yonkers, which was his usual route

. 20 Plaintiff contends that this was done inerror and TFD's "persistent intent" was 21 for bus 287 to make the Armonk-Mount Vernon trip. Groccia averred that this 22 was due to a misunderstanding and that Thomas was supposed to be operating 23 the bus on the interstate route from Armonk.FN2 Groccia further testified that 24 Thomas did not follow dispatch in going to Yonkers

. 2510 FN2. At his deposition, Groccia commented that his 1 affidavit was incorrect. Groccia testified that Thomas "went to 2 Yonkers instead of the dispatch to go to Armonk." 3 Id . at *1 & n.2 (emphases added). 4 The court pointed out that "[g]enerally , the MCS-90[B] endorsement applies when 5 transportation is interstate in nature" and stated th at if a motor carrier's trip crosses a State line it is 6 an interstate trip, whereas if the trip is entirely w ithin a single State, it is not an interstate trip. Id . at 7 *3. The court concluded that the trip in question was an intrastate, not an interstate, trip: 8 In this case, the school children are th e relevant "goods" being shipped. They 9 were transported entirely within New York. Any subsequent trip to transport 10 the senior citizens was a second, unrelated trip. Therefore, as a matter of law, 11 the [Yonkers] run was not an interstate run no matter TFD's later intention for 12 Thomas and bus 287. The "goods" in the Yonkers run were to remain entirely 13 within Yonkers. This single fact leads to the conclusion that the Emerson run 14 was not interstate . Summary judgment is appropriate in favor of defendant. 15 Id . (emphasis added). 16

II. DISCUSSION 17

On appeal, plaintiffs contend that summary judgment in favor of Lancer, rather than 18 plaintiffs, was error, arguing principally that when the accident occurred, TFD bus 287 was on an 19 interstate trip (see , e.g. , Lyons brief on appeal at 15, 16, 18, 29, 35, 36-37, 49, 50, 57, 59) because "the 20 fixed and persisting intent of the shipper that exis ted at the time of the dispatch was that bus 287 was 21 to perform an interstate trip involving the transportation of senior citizens" (id . at 57; see , e.g. , id

. 22 at 16, 48 (characterizing "T.F.D. as the shipper")). Plaintiffs conte nd that the district court erred in 23 "assum[ing]" and "claiming" that there were or could have been "two trips" on the afternoon of 24 February 14, 1989, instead of one interstate trip encompassing both Yonkers and Armonk (id . at 59); 2511 they argue that "[t]here was no factual basis upon which a jury could determine that two trips were 1 involved or that bus 287 was not engaged in interstate transportation" (id .). We disagree. 2

A. Summary Judgment Principles 3 Summary judgment is appropriate only if "there is no genuine dispute as to any 4 material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In 5 determining whether the moving party is entitled to judgment as a matter of law, the court must draw 6 all reasonable factual inferences in favor of the party against whom summary judgment is sought. 7 See , e.g. , Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986) ("Liberty Lobby "); United States 8 v. Diebold, Inc. , 369 U.S. 654, 655 (1962); Law Debenture Trust Co. of New York v. Maverick Tube 9 Corp. , 595 F.3d 458, 468 (2d Cir. 2010) ("Law Debenture "). In order to defeat a motion for summary 10 judgment, the opposing party must adduce "evidence on which the jury could reasonably find for th[at 11 party]," Liberty Lobby , 477 U.S. at 252; "[t]he mere existen ce of a scintilla of evidence in support of 12 the [opposing party's] position will be insufficient," id . If the opposing party's proffered "evidence 13 is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Id

. 14 at 249-50. "When both sides have moved for su mmary judgment, 'each party's motion must be 15 examined on its own merits, and in each case all reasonable inferences must be drawn against the 16 party whose motion is under consideration.'" Law Debenture , 595 F.3d at 468 (quoting Morales v. 17 Quintel Entertainment, Inc. , 249 F.3d 115, 121 (2d Cir. 2001)); see , e.g. , Wachovia Bank, National 18 Association v. VCG Special Opportunities Master Fund, Ltd. , 661 F.3d 164, 171 (2d Cir. 2011) 19 ("Wachovia Bank "). 20 In ruling on a motion for summary judgment, the district court may rely on "any 21 material that would be admissible" at a trial. Major League Baseball Properties, Inc. v. Salvino, Inc. , 2212 542 F.3d 290, 309 (2d Cir. 2008) (internal quotation marks omitted); see , e.g. , Raskin v. Wyatt Co. , 1 125 F.3d 55, 66 (2d Cir. 1997); Az rielli v. Cohen Law Offices , 21 F.3d 512, 517 (2d Cir. 1994); 10A 2 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil§ 2721 at 361 (3d ed. 1998); 3 see generallyFed. R. Civ. P. 56(c)(2). In determining whether the moving party is entitled to 4 judgment as a matter of law, the district court may not properly focus on individual strands of 5 evidence and consider the record in piecemeal fashi on; rather, it must consider "all of the evidence 6 in the record," Reeves v. Sanderson Plumbing Products, Inc. , 530 U.S. 133, 150 (2000), "review[ing] 7 the record 'taken as a whole,'" id . (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp. , 8 475 U.S. 574, 587 (1986)). 9 The same principles apply to our standard for reviewing the grant or denial of summary 10 judgment. See , e.g. , Wachovia Bank , 661 F.3d at 171; Fabozzi v. Lexington Insurance Co. , 601 F.3d 11 88, 90 (2d Cir. 2010); Law Debenture , 595 F.3d at 468. 12

B. Federal Regulation of Motor Carriers Transporting Passengers 13 for Hire 14 As indicated in Part I.B. above, § 18 of th e 1982 Bus Act, which was applicable at the 15 time of the accident at issue here, required the promulgation of financial responsibility regulations to 16 apply to "the transportation of passengers for hireby motor vehicle in the United States from a place 17 in a State to a place in another State " or "from a place in a State to another place in such State through 18 a place outside of such State ," or "between a place in a State and a place outside of the United States." 19 Bus Act § 18(a) (emphases added). Pursuant to this authority, the Secretary of Transportation issued 20 regulations requiring, inter alia , that an insurance policy, to evince such responsibility, include the 21 MCS-90B endorsement requiring the insurer to pay, within the limits of the policy, "any final 2213 judgment recovered against the insured" for personal injury to a member of the public or property 1 damage "resulting from negligence in the operation, maintenance or use of motor vehicles subject to 2 the financial responsibility requirements of Sec tion 18 of the Bus Regulatory Reform Act of 1982," 3 49 C.F.R. § 387.39 (Illustration I). 4 Neither party has called to our attention any cases--nor are we aware of any--dealing 5 with the applicability of an MCS-90B endorsement in circumstances such as those at issue here, 6 where a carrier's vehicle was involved in an accident while performing a contract that called for travel 7 solely intrastate and where the carrier had an unrelated contract that would likely involve travel 8 between two places in the same St ate over a route passing through a sec ond State. In various contexts 9 relating to the transport of property, involving such que stions as whether a particular vehicle or driver 10 was covered by an MCS-90 endorsement (which, for vehicles transporting goods rather than 11 passengers, parallels the MCS-90B endorsement, see , e.g. , Canal Insurance Co. v. Coleman , 625 F.3d 12 244, 249 (5th Cir. 2010)), see , e.g. , The Integral Insurance Co. v. Lawrence Fulbright Trucking, Inc. , 13 930 F.2d 258, 260-62 (2d Cir. 1991); Century Indemnity Co. v. Carlson , 133 F.3d 591, 595 (8th Cir. 14 1998), or whether a motor carrier's employees are exempt from federal wage-and-hour requirements 15 because the carrier's business as a whole is re gulated by the Secretary of Transportation, see , e.g. , 16 Bilyou v. Dutchess Beer Distributors, Inc. , 300 F.3d 217, 221-22 (2d Cir. 2002) ("Bilyou "); Collins 17 v. Heritage Wine Cellars, Ltd. , 589 F.3d 895, 896-97 (7th Cir. 2009); Klitzke v. Steiner Corp. , 110 18 F.3d 1465, 1467-68 (9th Cir. 1997), this Court and others have noted that the existence of the requisite 19 interstate nexus may be determined by looking to th e intent of the goods' seller or shipper with respect 20 to the goods' destination: 21 Whether the transportation is of an interstate nature can be "determined 22 by reference to the intended final destination" of the transportation when that 23 ultimate destination was envisaged at the time the transportation commenced. 2414 Project Hope [v. M/V Ibn Sina] , 250 F.3d [67, 74 (2d Cir. 2001)]; see also 1 Atlantic Coast Line [R. Co. v. Standard Oil Co. of Kentucky ], 275 U.S. [257, 2 269 (1927)] (determining continuity of transportation by examining whether 3 the destination of the goods "is arranged for or fixed in the minds of the 4 sellers "); Klitzke v. Steiner Corp. , 110 F.3d 1465, 1469 (9th Cir. 1997) 5 ("Whether transportation is interstate or intrastate is determined by the 6 essential character of the commerce, manifested by shipper's fixed and 7 persisting transportation intent at the time of the shipment . . . .") (citation 8 omitted) (emphasis in original); Foxworthy[ v. Hiland Dairy Co. ], 997 F.2d 9 [670, 672 (10th Cir. 1993)] ("Crucial to a determination of the essential 10 character of a shipment is the shipper's fixed and persisting intentat the time 11 of shipment.") (quotation marks and citation omitted); 29 C.F.R. § 782.7(b)(2) 12 (intrastate transportation cansatisfy the interstate commerce requirement of the 13 M[otor Carriers Act] if the shipper ha s a "fixed and persisting transportation 14 intentbeyond the terminal storage point at the time of shipment"). 15 Bilyou , 300 F.3d at 223-24 (second emphasis in original) (other emphases added). 16 Plaintiffs cite most of these cases and ch aracterize the bus that collided with the Lyons 17 vehicle as having commenced an interstate trip, pointing out that bus 287 was not licensed to operate 18 in the City of Yonkers and argui ng that TFD had a "fixed and persisting intent" to send bus 287 to 19 Armonk to bring the senior citizens back to Mount Vernon. Thus, characterizing the Emerson 20 students as "goods," plaintiffs argue that the nature of 21 the goods being transported does not determine whether the trip was of an 22 interstate or intrastate nature since their transportation was unauthorizedand 23 only involved a portion of that inters tate trip which was performed by the 24 driver without authority and contrary to the fixed and persisting intent of the 25 shipper at the time of dispatch of bus 287. 26

. . . . 27 . . . [B]us 287 was onlydispatched because T.F.D. had procured and 28 begun performance of an interstate contract with senior citizens and . . . the 29 fixed and persisting intent of T.F.D., as a shipper , at the time of bus 287's 30 dispatch, was that bus 287 would be engaged in interstate transportation of 31 those senior citizens with a final intended destination of Mount Vernon. 32 (Lyons brief on appeal at 58 (emphases added).) Wereject these contentions as analytically flawed 33 and lacking in evidentiary foundation. 3415 First, plaintiffs' characterization of "T.F.D. as the shipper" (Lyons brief on appeal at 16, 1 48; see , e.g. , id . at 18, 19, 23, 24, 25, 26, 29, 58), is analytically unsound. TFD was not a shipper; it 2 was a carrier. The shipper is the entity that purch ases the transportation services of the carrier. 3 Further, the term "shipper" is not normally associated with passenger travel. For example, federal 4 regulations define various categories of shippers with respect to shipments of goods, see , e.g. , 49 5 C.F.R. § 375.103, referred to in49 C.F.R. § 387.301(b), whereas regulations applicable to "Motor 6 Carriers of Passengers," see , e.g. , 49 C.F.R. § 387.29, do not mention orotherwise refer to shippers. 7 See generally S. Sorkin, Goods in Transit§ 3.03 (2011) ("It has been held that the destination 8 intended bythe passenger or shipper at the commencement of the journey or shipment and known to 9 the carrier determines the character of the commerce." (emphases added)). 10 Assuming that "shipper" is a concept applicable to non-adult passengers, the shippers 11 of the students to and from Emer son Junior High School would have been the students' parents and 12 the school. As there is no dispute that TFD's route to pick up and drop off those students was 13 "entirely within the City of Yonkers" (Rule 56.1 Statements ¶ 17), no rational juror could find that 14 the parents or the school intended that the school bus, in transporting the students between the school 15 and the specified drop-off locations, would tr avel through a State other than New York. 16 Nonetheless, we cannot say that the plans or actions of the carrier itself will never have 17 a bearing on whether a trip is interstate or intrastate, for we doubt that the parents or the school would 18 have any interest in the bus's itinerary after all of the students were dropped off at the prearranged 19 locations. And viewing the record in the light mo st favorable to plaintiffs and drawing reasonable 20 inferences in their favor, we accept that a TFD bus's route between Armonk and Mount Vernon would 21 have been through Connecticut. Thus, our conclusi on as to the intent of the parents and the school 22 leaves open the question--discussed below--of whether on the afternoon of February 14, 1989, bus 2316 287, if it had completed its transport of the students in Yonkers, was to have been driven to Armonk 1 to pick up the senior citizens. 2 Second, plaintiffs' description of the students' "transportation []as unauthorized" is 3 contrary to the record. Although it is beyond dispute that TFD had a charter contract to transport the 4 senior citizens back to Mount Ve rnon from Armonk, it is also indis putable that TFD had a contract 5 with Yonkers or the Yonkers school district to tr ansport students to and fr om Emerson Junior High 6 School. Further, although it is undisputed that bus 287 was unlicensed by the City of Yonkers to 7 operate in Yonkers, that fact does not support an inference that that bus was dispatched to Armonk. 8 There is nothing in the record to suggest that bus 287 was the bus that had transported the senior 9 citizens to Armonk that morning; indeed, the evidence is to the contrary, as Thomas testified that that 10 was the bus he had used to take the students to Emerson that morning (seeThomas Dep. 30-32). 11 Plaintiffs have pointed to no evidence to the contrary. The uncontradicted evidence that bus 287 was 12 used in Yonkers on the morning of February 14, 1989, defeats plaintiffs' theory that, on that afternoon, 13 bus 287 could "only" have been dispatched to go to Armonk. 14 Although plaintiffs suggest that the senior citizens had an intent to travel "interstate" 15 (seeLyons brief on appeal at 49)--and one could reasonably infer that the senior citizens intended that 16 they would be transported between Mount Vernon and Armonk over the most efficient route, i.e. , 17 through Connecticut--such an intent provides no basis fo r an inference that that interstate trip was to 18 be carried out by bus 287. There is no evidence whatever that the senior citizens had arranged for bus 19 287--or any particular bus--for their trip to or from Armonk. Further, even if the senior citizens 20 expected to be brought home on the same bus that had taken them to Armonk, the evidence, as 21 discussed above, is that the bus that had taken them to Armonk in the morning was not bus 287. 22 Finally, although plaintiffs argue, apparently as an alternative, that the trip to pick up 23 and drop off the Emerson students after school was "o nly . . . a portion of [an] interstate trip" to 2417 Armonk (Lyons brief on appeal at 58), that Thomas "b egan [an] interstate trip [to Armonk] by picking 1 up and transporting a group of students through the C ity of Yonkers where he intended to discharge 2 them at three stops" (id . at 15; see , e.g. , id . at 50), and that even if Thomas had completed his transport 3 of the Emerson students that afternoon he had "ample time" to "pick[] up and return[] th[]e senior 4 citizens from Armonk through Conn ecticut to Mount Vernon" (id . at 15-16), no rational juror could 5 so find. Groccia testified that the senior citizens were to be picked up in Armonk at 2 p.m.; plaintiffs 6 have not pointed to any evidence to suggest a diffe rent pick-up time. The police report showed that 7 the time of the accident in Yonkers was 2:51 p.m. When the accident occurred, Thomas had yet to 8 reach even the first of the several drop-off locati ons for the students. And as Groccia testified, if 9 Thomas had gone to Armonk, he would not have been in Yonkers. No rational juror could find that 10 only a single trip was intended to fulfill both TFD's contract to transport the students after school in 11 Yonkers and its contract to pick up the senior citizens in Armonk at 2 p.m. 12 We conclude that the district court did not err in ruling that Lancer was entitled to 13 judgment as a matter of law on the basis of the evidence that TFD ha d to have intended two trips in 14 order to perform both its Yonkers and its Arm onk-to-Mount Vernon obligations, that the accident 15 occurred on the trip that was wholly intrastate, and that the MCS-90B endor sement therefore did not 16 apply. 17 Plaintiffs also argue, as an alternative to their contention that bus 287 was, or should 18 have been, on an interstate trip at the time of the accident, that the MCS-90B endorsement imposes 19 federal liability on Lancer even if bus 287 was on a purely intrastate trip. In support of that 20 contention, they rely principally on two district court cases, Reliance National Insurance Co. v. Royal 21 Indemnity Co. , No. 99 Civ. 10920, 2001 WL 984737 (S.D.N.Y. Aug. 24, 2001) ("Reliance "), and 22 Insurance Corp. of New York v. Monroe Bus Corp. , 491 F.Supp.2d 430 (S.D.N.Y. 2007) ("Insurance 23 Corp. "), which not only are not binding on us but also bear no significant similarity to the present 2418 case. In Reliance , the district court was called on principa lly to unravel the interrelated obligations 1 of five insurance companies with regard to various theories of vicarious liability where an "interstate 2 carrier" had "sign[ed] an exclusiv e lease with a trucker" for the trucker's services "to perform 3 interstate transport" for some six months using hi s own tractor and a trailer provided by the interstate 4 carrier; and the tractor-trailer, displaying the carrier 's interstate permit, was involved in an accident 5 "while the trucker perform[ed] a single intrastate transport," 2001 WL 984737, at *6. The insurer for 6 the carrier disclaimed coverage for the trucker on the ground that the accident occurred on a trip that 7 was wholly intrastate. However, as the intrastate trip was aberrational, the court ruled that the proper 8 focus was not on that trip but rather on the relationship between the trucker and the carrier, see id . at 9 *4, and that the carrier's insurer's MCS-90 endorsement covered the trucker because it was "clear that 10 [the carrier] intended to procure [the trucker]'s services for interstate transport," id . at *6. And in 11 Insurance Corp. , the principal issues were whether th e insurer ("InsCorp")--which had paid a 12 judgment against the insured and was seeking indemn ification--had been given proper notice of the 13 claim against the insured and whether federal law preempted state-law prin ciples with respect to 14 disclaimers based on lack of notice. The court was not presented with an intrastate-coverage issue, 15 given that "[i]n seeking [indemnification], InsCorp ma[de] a three-part argument," the first part of 16 which was in fact that "it was obligatedto pay the [injured party's] judgment by virtue of the 17 Endorsement," 491 F.Supp.2d at 433 (emphases added). 18 Plaintiffs also argue that Lancer is federally liable with respect to an accident on an 19 intrastate trip because the MCS-90B endorsement attached to the Policy was accompanied by 20 "Forms E and F." (E.g. , Lyons brief on appeal at 42.) We see no merit in this argument. Form F--the 21 record does not indicate that plaintiffs submitted a Form E to the district court--deals with "proof of 22 financial responsibility under the provisions of any Statemotor carrier law or regulations promulgated 23 by any StateCommission having jurisdiction" and assures coverage "in accordance with the 2419 provisions of suchlaw or regulations to the extent of the coverage and limits of liability required 1 thereby ." (Policy Form F (emphases added).) Neith er Form F nor any of the authorities cited by 2 plaintiffs persuades us that the MCS-90B endorse ment required by "Section 18 of the Bus Regulatory 3 Reform Act of 1982," 49 C.F.R. § 387.39 (Illustration I)--a statutory section whose scope is expressed 4 in terms of passenger transport that crosses one or more State boundaries--app lies to an accident of 5 a primarily intrastate carrier on a trip that neither did nor was intended to cross a State border. 6 In light of the above conclusions, we neednot reach alternative bases for affirmance 7 argued by Lancer. 8

CONCLUSION 9

We have considered all of plaintiffs' arguments on this appeal and have found them 10 to be without merit. The judgment of the district court dismissing the complaint is affirmed. 11