Indiana: USDOT’s MCS-90 Endorsement on Insurance Policy / Intrastate Trip With Empty Load   

SUMMARY OF AMICUS BRIEF FILED 8/03/2021

On August 3, 2021, TIDA filed an amicus brief (attached) with the Indiana Supreme Court, in the case entitled Progressive Southeastern Ins. Co. v. B&T Bulk LLC. , in support of the appellant Progressive Southeastern Ins. Co., in order to reverse a decision of the Court of Appeals of Indiana.  The issue is whether and to what extent the state law (here an Indiana statute) can expand the scope of the USDOT’s MCS 90 Endorsement such that the insurer of a motor carrier (whose intrastate trip with an empty load caused a fatal accident) is liable as a surety to pay any judgment in favor of the deceased claimant against the motor carrier because of the MCS 90 Endorsement.  Here, the tractor trailer was not listed on the commercial auto insurance policy and thus there was no insurance coverage under the policy.  The motor carrier is still contractually obligated to reimburse the insurer for the surety payment made that was not covered under the policy, but the insurer is not always going to be reimbursed by the motor carrier.Will the Supreme Court reverse the Court of Appeals’ holding that “the [Indiana] legislature's intent was to apply the minimum levels of financial responsibility in 49 C.F.R. part 387 to intrastate motor carriers given its explicit inclusion of "intrastate" in the [Indiana] statutes”?  TIDA members Michael T. Terwilliger and Christopher R. Whitten of the Whitten Law Office in Indianapolis, Indiana filed the amicus brief on behalf of TIDA. 

download the amicus brief