The MCS-90 endorsement should be read into every interstate trucking policy, even if not attached. However, in order for the MCS-90 policy to to be found to be read into an insurance policy, when it was not specifically made part of the policy, you need to hire an experienced truck accident attorney from the beginning. What makes me say that? Take a look at a recent blog post on the Water’s Case. In his Florida Insurance Blog, Mark Nation noted that:
The Progressive policy at issue did not contain an MCS-90 endorsement, however, Miller argued that one should be incorporated into the Progressive policy because Progressive knew or should have known that Waters was engaged in interstate travel. The 11th Circuit held that Waters did not present sufficient evidence to support a conclusion that Progressive knew or should have known Miller was driving the tractor-trailer interstate.
Importantly, the 11th Circuit specifically held that because Waters failed to provide sufficient evidence that Progressive knew or should have known that Miller was engaged in interstate trucking the Court found it "unnecessary for us to reach the issue of whether the endorsement can be read into a policy that does not contain it, and we expressly decline to do so."
The issues required to be addressed, to obtain coverage, in the Waters case were not fully developed at the trial court level in my opinion. Thus, once the case went up to the Court of Appeals, there was little that could be done by a really smart, knowledgeable, appellate counsel but go down swinging trying to save the case. Footnote 3 to the Water’s case lists a series of cases that did find coverage when the issue was addressed appropriately. My take on Water’s, and footnote 3, is as follows:
Waters v. Miller, 564 F.3d 1355 (11th Cir. Ct. App. 2009) The court held that a Florida based truck, with a catastrophic accident in Georgia, was not covered by an MCS-90 even though involved the truck was clearly involved in interstate transportation. The court held:
… In this case, however, the Policy did not include the endorsement. Waters urges this Court to incorporate the endorsement into the Policy as a matter of law, arguing the evidence presented to the district court showed Progressive knew or should have known Miller was engaged in interstate travel. Even if we assume arguendo such knowledge on the part of the insurer is justification for incorporating the endorsement into a policy that does not contain it,[FN3] Waters did not present sufficient evidence to support the conclusion that Progressive knew or *1358 should have known Miller was driving the tractor-trailer interstate. For this reason, it is unnecessary for us to reach the issue of whether the endorsement can be read into a policy that does not contain it, and we expressly decline to do so. The district court did not err in refusing to rewrite the Policy to include the MCS-90 endorsement, and we affirm its order granting summary judgment in favor of Progressive on the federal law issue.
FN3. Some courts have incorporated the endorsement into policies as a matter of law. See Prestige Cas. Co. v. Mich. Mut. Ins. Co., 99 F.3d 1340, 1348 n. 6 (6th Cir.1996); Travelers Ins. Co. v. Tranp. Ins. Co., 787 F.2d 1133, 1139 (7th Cir.1986); Hagans v. Glen Falls Ins. Co., 465 F.2d 1249, 1252 (10th Cir.1972). At least one other, while not incorporating the endorsement, indicated it may be read into a policy if the insurer knew it was insuring an interstate motor carrier. See Howard v. Quality Xpress, Inc., 128 N.M. 79, 989 P.2d 896, 900 (1999).Progressive was entitled to summary judgment under the facts of this case. Accordingly, we affirm the district court’s orders granting summary judgment to Progressive.