Court of Appeals of Ohio,

Sixth District, Lucas County.

Verdale DUHART, Appellee/Cross-Appellant

v.

Donald R. LAWSON, et al., Defendants.

[USA Truck, Inc., Appellant/Cross-Appellee].

No. L-09-1067.

 

Decided March 12, 2010.

 

OSOWIK, P.J.

 

{¶ 1} This is an appeal from a judgment issued by the Lucas County Court of Common Pleas, in which the trial court denied cross-motions for summary judgment filed by appellee/cross-appellant, Verdale Duhart, and appellant/cross-appellee, U.S.A. Truck, Inc. (“USA”), and granted a declaratory judgment motion filed by appellee/cross-appellant.

 

{¶ 2} On appeal, USA sets forth the following assignments of error:

 

{¶ 3} “Assignment of Error # 1:

 

{¶ 4} “The trial court erred to the prejudice of appellee/cross-appellant USA Truck, Inc. when it denied appellee/cross-appellant USA Truck, Inc.’s motion for summary judgment in its February 19, 2009 judgment entry[.]

 

{¶ 5} “Under a negligence cause of action via vicarious liability, the trial court erred when [it] denied USA Truck’s motion for summary judgment when that court found, as a matter of law, that Mr. Lawson was not acting within the course and scope of his employment with USA Truck[.]

 

{¶ 6} “The trial court erred when [it] denied USA Truck’s motion for summary judgment even though the trial court found, as a matter of law, that the strict liability principles from Wyckoff Trucking, Inc. v. Marsh Brothers (1991), 58 Ohio St.3d 261, did not apply[.]”

 

{¶ 7} “Assignment of Error # 2:

 

{¶ 8} “The trial court’s February 19, 2009 judgment entry granting appellant/cross-appellee Verdale Duhart’s motion for declaratory judgment was an abuse of discretion[.]

 

{¶ 9} “The trial court’s granting of Mr. Duhart’s motion for declaratory judgment is an abuse of discretion in that it abolishes the well-settled and time honored defense that an employer is not liable for the acts of its employees who are not acting in the course and scope of their employment[.]

 

{¶ 10} “The trial court’s granting of Mr. Duhart’s motion for declaratory judgment is an abuse of discretion in that it creates new law which was not contemplated by nor provided for by the legislature[.]

 

{¶ 11} “The trial court’s reliance on the West Virginia Supreme Court case of Jackson v. Donahue (1995), 193 W. Va. 587, 457 S.E.2d 524, in support of its granting of Mr. Duhart’s motion for declaratory judgment is an abuse of discretion[.]”

 

{¶ 12} In addition, Duhart sets forth the following cross-assignment of error:

 

{¶ 13} “The trial court erred as a matter of law to the prejudice of plaintiff/appellant in holding that the employee/driver of a common carrier was not a ‘statutory employee’ pursuant to Federal Regulation which would make the issue of ‘course and scope of employment’ irrelevant.”

 

{¶ 14} The record contains the following relevant, undisputed facts. From April 27, 2006, until May 15, 2006, Donald Lawson was employed by USA as an over-the-road truck driver. A truck owned by USA, and displaying United States Department of Transportation (USDOT) number  213754, was assigned to Lawson. USA required Lawson to drive the truck during the week, and allowed him to take it home on weekends.

 

The USDOT has since been replaced by the Interstate Commerce Commission (“ICC”). In the interest of clarity, the number on USA’s truck will be referred to herein as an “ICC” number.

 

{¶ 15} On Sunday, May 14, 2006, Lawson drove the truck to pick up a personal friend. After dropping off his friend, Lawson’s truck collided with a vehicle driven by Duhart at the intersection of Cherry Street and Central Avenue in Toledo, Ohio. Immediately following the collision, Lawson drove the truck away from the scene. However, Lawson later drove the truck back through the intersection, where it was identified by Duhart, and was eventually stopped by police. Duhart suffered physical injuries as a result of the collision.

 

Lawson admitted in deposition that he consumed approximately 12 beers before driving the truck to pick up his friend.

 

{¶ 16} On June 6, 2007, Duhart filed a complaint against Lawson and USA, in which he set forth claims of negligence per se and statutory violations by Lawson, along with claims of vicarious liability, strict liability, statutory violations and negligent entrustment on the part of USA. Duhart also sought punitive damages from USA. In addition, Duhart set forth claims of vicarious liability, strict liability, negligence, statutory violations and punitive damages against defendant “John Doe,” who Duhart identified as the “registered owner of the [ICC] number 213754 displayed on the tractor unit involved in this collision * * *.” Answers were filed by USA on July 9, 2007, and by Lawson on August 6, 2007.

 

{¶ 17} On November 14, 2007, USA filed a motion for summary judgment, in which it asserted that it was not liable for Duhart’s injuries. In support, USA argued that, even though it was the owner of the truck driven by Lawson, it is not strictly liable under current federal trucking regulations for injuries caused by Lawson when he was not working for USA. USA cited Wyckoff Trucking, Inc. v. Marsh Bros. (1991), 58 Ohio St.3d 261, in which the Ohio Supreme Court held that ICC regulations apply to carrier-lessees who display an ICC number on their leased vehicles. See Section 376.12, Title 49, C.F.R. USA also argued that it is not vicariously liable for any harm caused by Lawson’s negligence, because Lawson was not operating the truck during the course of his employment. In addition, USA argued that it is not liable in negligence for hiring, supervising, or training Lawson, or for entrusting the truck to Lawson to perform the work for which he was employed by USA. Finally, USA argued that it did not violate, or encourage Lawson to violate, any local, state, or federal laws or regulations.

 

{¶ 18} On May 21, 2008, Duhart filed a cross-motion for summary judgment, in which he argued that USA is liable as a matter of law for his injuries. In support, Duhart argued that, pursuant to Wyckoff, supra, Lawson is a statutory employee. Accordingly, USA is liable because its ICC number was displayed on the side of the truck that caused Duhart’s injuries, whether or not Lawson was acting within the scope of his employment when the truck collided with Duhart’s vehicle. In addition, Duhart argued that it is rebuttably presumed that Lawson was acting within the scope of his employment because he was driving USA’s truck when the accident occurred. Finally, Duhart argued that summary judgment cannot be granted in USA’s favor because a genuine issue of material fact exists as to whether USA was negligent in hiring, training or supervising Lawson, or in entrusting him with the duty of driving one of its trucks.

 

{¶ 19} On the same day his cross-motion for summary judgment was filed, Duhart filed a “Motion for Declaratory Judgment” in which he asked the trial court to find that, pursuant to Federal MotorCarrier Safety Regulations (“FMCS regulations”), USA is responsible to pay damages resulting from the actions of its employees. In support, Duhart argued that FMCS regulations require USA, a self-insured carrier, to indemnify its drivers “for negligence arising out of the maintenance, operation and use of its vehicle, without regard to any limitations such as policy exclusionary language, respondeat superior principles, or on whose behalf the trucker is operating.” On June 5, 2008, Lawson filed a “Joinder in Plaintiff’s Motion for Declaratory Judgment.” On December 29, 2008, the parties filed a “Joint Stipulation” in which they agreed that the trial court’s decision on their cross-motions for summary judgment and Duhart’s motion for declaratory judgment would be final and appealable, and that there would be “no just cause for delay concerning the appeal of these decisions.”

 

{¶ 20} On February 11, 2009, the trial court filed a judgment entry in which it found that Wyckoff, supra, does not apply in this case, since USA was the owner of the truck, not a carrier-lessee. The trial court also recognized this court’s decision in Bookwalter v. Prescott, 6th Dist. No. L-05-1015, 2006-Ohio-585, in which we refused to hold a carrier-owner strictly liable under Wyckoff because that case “and the federal statute that it interprets both addressed vehicles of interstate motorcarriers subject to a written lease.” Bookwalter, supra at ¶ 16. The trial court also found that there was no genuine issue of fact as to whether Lawson was acting within the scope of his employment at the time of the accident, since he stated in deposition that he was not. The trial court concluded that Lawson is not a statutory employee of USA, and USA is not strictly liable for Duhart’s injuries pursuant to Wyckoff, supra.

 

{¶ 21} In spite of the above findings, the trial court further found that USA is a self-insured carrier, which is required to provide proof of financial responsibility pursuant to Section 387 .309 of the MotorCarrier Act of 1980. Relying on Jackson v. Donahue (1985), 193 W.Va. 587, the trial court concluded that allowing a carrier to self-insure “is not commensurate with avoiding liability by electing such status.” Accordingly, the trial court found that registered carriers such as USA are required to indemnify “innocent victims” such as Duhart for their injuries, because they are in the best position to seek reimbursement from the tortfeasor.

 

{¶ 22} Based on its above findings, the trial court denied both parties’ motions for summary judgment, and granted Duhart’s motion for declaratory judgment. The trial court further stated that “[b]y stipulation of the parties, the Court finds there is no just cause for delay and the decision is FINAL and APPEALABLE.” (Emphasis original.) Both parties filed timely notices of appeal.

 

{¶ 23} Rather than addressing the merits of either party’s appeal, we note that, under Ohio law, an appellate court has no jurisdiction to review an order that is not final and appealable. Darrow v. Zigan, 4th Dist. Nos. 07CA25, 07AP25, 2009-Ohio-2205, ¶ 23;Gen. Acc. Ins. Co. v. Ins. Co. of N. Am. (1978), 44 Ohio St.3d 17. “Even if the parties do not address the lack of a final appealable order, the reviewing court must raise the issue sua sponte.” Id., citing Engelfield v. Corcoran, 4th Dist. No. 06CA2906, 2007-Ohio-1807, ¶ 24. (Other citations omitted.)

 

{¶ 24} It is well-settled that “ ‘[t]he denial of a motion for summary judgment generally is considered an interlocutory order not subject to immediate appeal.’ “ Id. at ¶ 27, quoting Stevens v. Ackman, 91 Ohio St.3d 182, 2001-Ohio-249. The reason that the denial of a summary judgment motion is not a final appealable order is because it “ ‘does not determine the outcome of the case * * *.’ “ Id., quoting Intl Bhd of Elec. Workers, Local Union No. 8 v. Vaughn Indus., 6th Dist. No. WD-05-091, 2006-Ohio-475, ¶ 21. If an order is determined to be otherwise not final and appealable, a joint stipulation by the parties is not sufficient to turn it into a final, appealable order. Amore v. Grange Ins. Co., 5th Dist. No. 02CA58, 2003-Ohio-2940, ¶¶ 13-14. Similarly, “[i]nclusion of Civ.R. 54(B) language does not convert an otherwise nonfinal order into one which can be immediately appealed * * *.” Galouzis v. Americoat Painting Co., 7th Dist. No. 08-MA196, 2009-Ohio-204, ¶ 21.

 

{¶ 25} On consideration of the foregoing, we find that, in spite of the parties’ joint stipulation and the inclusion of Civ.R. 54(B) language in its opinion, the trial court’s denial of both parties’ motions for summary judgment is not a final and appealable order. USA’s first assignment of error and Duhart’s cross-assignment of error will not be addressed as we must dismiss the parties’ appeals from the denial of their respective summary judgment motions.

 

{¶ 26} As to the trial court’s granting of Duhart’s motion for declaratory judgment, Ohio courts have held that “a ‘motion’ for declaratory judgment is not prescribed by [either] the Civil Rules or R.C. Chapter 2721.” Galouzis v. Americoat Painting Co., supra at ¶ 17, citing Fuller v. German Motor Sales, Inc. (1998), 51 Ohio App.3d 101, 103. In Fuller, the Fifth District Court of Appeals held that “the declaratory judgment statutes contemplate a distinct proceeding generally initiated by the filing of a complaint. 26 Corpus Juris Secundum (1956) 90, Declaratory Judgments, Section 136. A ‘motion’ for a declaratory judgment is procedurally incorrect and inadequate to invoke the jurisdiction of the court pursuant to R.C. Chapter 2721.” Fuller at 103; Schumacher v. Canton Drop Forging & Mfg. Co. (Oct. 7, 1983), 5th Dist. No. 6099.

 

{¶ 27} Upon consideration of the foregoing, we find that the trial court did not have jurisdiction to decide Duhart’s “motion” for declaratory judgment. Accordingly, the decision granting the “motion” is void. USA’s second assignment of error is, therefore, well-taken.

 

{¶ 28} The judgment of the Lucas County Court of Common Pleas is hereby reversed, and the case is remanded to the trial court for further proceedings consistent with this decision. Duhart is ordered to pay the costs of this appeal pursuant to App.R. 24.

 

JUDGMENT REVERSED.

 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.

Court of Appeals of Georgia.

AEQUICAP INSURANCE COMPANY

v.

CANAL INSURANCE COMPANY et al.

No. A09A2382.

 

March 24, 2010.

 

Don Smart, for AEQUICAP Insurance Company.

 

Robert Walker Browning, Judge Douglas Lamar Gibson, Adam Ferrell, for Canal Insurance Company et. al.

 

BERNES, Judge.

 

This is a declaratory judgment action in which Aequicap Insurance Company appeals the trial court’s order granting partial summary judgment in favor of appellee Randall Coleman O’Berry. The trial court determined that a MCS-90 endorsement  to Aequicap’s insurance policy provided coverage for any judgment entered upon O’Berry’s personal injury claim against Aequicap’s insured, CDS Transport, Inc., and its leased driver, Jeffrey Floyd.  Aequicap contends that the trial court erred in holding that the MCS-90 endorsement provided coverage and that Floyd was CDS Transport’s statutory employee. For the reasons that follow, we affirm.

 

On appeal, the trial court’s grant of summary judgment is viewed de novo to determine whether the evidence, viewed in the light most favorable to the nonmovant, demonstrates any genuine issue of material fact. See Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997). “Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c).” Id.

 

The undisputed facts show that Aequicap’s insured, CDS Transport, Inc., was a for-hire motorcarrier operating under the authority of the Interstate Commerce Commission. Jeffrey Floyd was a truck driver who owned a tractor-trailer rig and leased it to interstate motorcarriers for use in transport operations. On February 10, 2006, CDS Transport and Floyd entered into a lease agreement, whereby CDS Transport leased Floyd’s truck and driving services for its operations. On or about March 7, 2006, while Floyd was on duty and driving for CDS Transport, his truck collided with the truck driven by O’Berry and an automobile driven by a third party.

 

At the time of the automobile accident, CDS Transport had in place an insurance policy issued by Aequicap. The Aequicap policy provided $1 million in collision coverage for trucks owned by CDS Transport, required CDS Transport to obtain Aequicap’s pre-approval for newly placed drivers, and excluded coverage for automobiles leased with a driver. Significantly, the Aequicap policy also contained a MCS-90 endorsement, in accordance with the Federal MotorCarrier Safety Regulations (“FMCSR”), 49 C.F.R. § 387.15, which pertinently provided as follows:

 

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 motorcarrier of property, with Sections 29 and 30 of the MotorCarrier Act of 1980 and the rules and regulations of the Federal Highway Administration (FHWA) and the Interstate Commerce Commission (ICC).

 

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 MotorCarrier Act of 1980 regardless of whether or not each motor vehicle is specifically 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 under the provisions of the policy except for the agreement contained in this endorsement.

 

(Emphasis supplied.)

 

After the accident was reported to Aequicap, the insurer issued two successive reservation of rights letters that questioned whether coverage was available under its insurance policy since the truck was not listed on the schedule of covered vehicles, Floyd was not a pre-approved driver, and the accident allegedly was not timely reported.

 

Floyd was insured under a non-trucking policy issued by Canal Insurance Company. Canal’s policy contained an exclusion from coverage that applied when the automobile was used “in the business of anyone to whom the automobile [was] rented or leased.” O’Berry was separately insured under an uninsured/underinsured motorist (UIM) policy issued by Capital City Insurance Company.

 

Subsequently, in February 2007, O’Berry filed a personal injury action against Floyd, seeking to recover damages allegedly sustained as a result of the automobile accident. In turn, Floyd filed a third party complaint against CDS Transport, alleging that it was liable for contribution and/or indemnity for O’Berry’s claim. Canal filed the instant declaratory judgment action, naming O’Berry, Floyd, CDS Transport, Aequicap, and Capital City Insurance as defendants and seeking a declaration as to the parties’ rights and obligations regarding coverage under the insurance policies. O’Berry filed a cross-claim against Aequicap, alleging that it was responsible to pay any judgment entered in the underlying personal injury action, based upon the MCS-90 endorsement of its policy. O’Berry also filed a motion for partial summary judgment, asserting that the MCS-90 endorsement imposed liability upon Aequicap for any judgment in the underlying action, rendered Floyd the statutory employee of CDS Transport at the time of the accident, and rendered CDS Transport vicariously liable for O’Berry’s damages. Following a hearing, the trial court granted O’Berry’s motion. We agree with the trial court’s ruling.

 

The MCS-90 endorsement contained in Aequicap’s policy applies in this case. A brief overview of the history of the FMCSR and ICC federal regulations is helpful in explaining the purpose and applicability of the MCS-90 endorsement:

 

In the past, the use by truckers of leased or borrowed vehicles led to a number of abuses that threatened the public interest and the economic stability of the trucking industry. In some cases, ICC-licensed carriers used leased or interchanged vehicles to avoid safety regulations governing equipment and drivers. In other cases, the use of non-owned vehicles led to public confusion as to who was financially responsible for accidents caused by those vehicles.

 

In order to address these abuses, Congress amended the Interstate Commerce Act to allow the ICC to prescribe regulations to insure that motorcarriers would be fully responsible for the operation of vehicles certified to them. 49 U.S.C. § 304(e) (1956)…. In response to this mandate, the ICC promulgated regulations requiring that every lease entered into by an ICC-licensed carrier must contain a provision stating that the authorized carrier maintain “exclusive possession, control, and use of the equipment for the duration of the lease,” and “assume complete responsibility for the operation of the equipment for the duration of the lease.” 49 C.F.R. § 1057.12(c). Further, the ICC require[d] that all ICC-certified carriers maintain insurance or other form of surety “conditioned to pay any final judgment recovered against such motorcarrier for bodily injuries to or the death of any person resulting from the negligent operation, maintenance, or use of motor vehicles” under the carrier’s permit. 49 C.F.R. § 1043.1(a).

 

To assure compliance with this requirement, the ICC developed a form endorsement to be included in insurance policies of carriers who use leased vehicles to transport property under ICC certificate.

 

(Citations and punctuation omitted.) Empire Fire & Marine Ins. Co. v. Guaranty Nat. Ins. Co., 868 F.2d 357, 362-363(III)(A) (10th Cir.1989). See also Price v. Westmoreland, 727 F.2d 494, 496(II) (5th Cir.1984).

 

Thereafter, the MotorCarrier Act of 1980, 49 U.S.C. § 10101 et seq., and the regulations promulgated thereunder were enacted. The regulations substantially mirrored the ICC regulations. See 49 C.F.R. §§ 376.12(j); 376.15; Armstrong v. U.S. Fire Ins. Co., 606 FSupp2d 794, 808-809(VI)(C)(1) (E.D.Tenn.2009). The FMCSR also imposed general leasing requirements that required interstate motorcarriers to maintain written leases containing provisions that “the authorized carrier lessee shall have exclusive possession, control, and use of the equipment for the duration of the lease” and that “the authorized carrier lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease.” 49 C.F.R. § 376.12(c)(1). See also 49 C.F.R. § 376.11. The FMCSR further set forth a motorcarrier endorsement form, known as the MCS-90, required to be attached to the motorcarrier’s insurance policy. See 49 C.F.R. § 376.15; Armstrong, 606 FSupp2d at 808-809(VI)(C)(1).

 

It is well-established that the primary purpose of the MCS-90 is to assure that injured members of the public are able to obtain judgment from negligent authorized interstate carriers. In order to accomplish this purpose, the endorsement makes the insurer liable to third parties for any liability resulting from the negligent use of any motor vehicle by the insured, even if the vehicle is not covered under the insurance policy.

 

(Citations and punctuation omitted.) Armstrong, 606 FSupp2d at 808-809(VI)(C)(1). See also Empire Fire & Marine Ins. Co. v. J. Transport, Inc., 880 F.2d 1291, 1298 (11th Cir.1989) (“It is clear that … [the] ICC regulations require the carrier, or its certified insurer, to protect the public from loss due to negligent acts[.]”) (citations omitted); Hot Shot Express v. Assicurazioni Generali, S.P.A., 252 Ga.App. 372, 373-374, 556 S.E.2d 475 (2001) (“Under this regulatory scheme, the motorcarrier is fully responsible to the public for the operation of its leased vehicles [.]”) (footnote omitted); Nationwide Mut. Ins. Co. v. Holbrooks, 187 Ga.App. 706, 712(3), 371 S.E.2d 252 (1988) (the ICC regulations “preempt state law in tort actions in which a member of the public is injured by the negligence of a motorcarrier’s employee while operating an interstate carrier vehicle [.]”) (punctuation and citation omitted).

 

The undisputed facts established that O’Berry was a member of the public who was allegedly injured in an automobile accident caused by Floyd’s negligent operation of the truck in the course of CDS Transport’s motorcarrier business. Based upon the foregoing, it is clear that O’Berry was a member of the public whom the MCS-90 endorsement was intended to protect. Consequently, the MCS-90 endorsement, attached to Aequicap’s policy in compliance with the required statutory provisions of 49 C.F.R. §§ 376.12(c)(1) and 376.15, applies to cover O’Berry’s damages claim. See Hot Shot Express, 252 Ga.App. at 373-374, 556 S.E.2d 475;Holbrooks, 187 Ga.App. at 712(3), 371 S.E.2d 252.

 

Moreover, based upon the regulatory requirements that the motorcarrier assume exclusive possession, control, and use of the leased truck and maintain responsibility to the public, CDS Transport is vicariously liable as a matter of law for Floyd’s negligence. Accordingly, Floyd is deemed to be CDS Transport’s “statutory employee” for purposes of carrying out the intent of the regulations. See Price, 727 F.2d at 496-497(II);Simmons v. King, 478 F.2d 857, 867 (5th Cir.1973); Kolencik v. Progressive Preferred Ins. Co., Civil Action No. 1:04-CV-3507-JOF, 2006 U.S. Dist. LEXIS 24855, at *14-17 (II)(A) (N.D.Ga. Mar. 17, 2006); Hot Shot Express, 252 Ga.App. at 374, 556 S.E.2d 475;Holbrooks, 187 Ga.App. at 712(3), 371 S.E.2d 252.

 

Aequicap nevertheless contends that the terms of its insurance policy did not designate Floyd or his truck for coverage and that the lease agreement between CDS Transport and Floyd failed to comply with the regulatory requirements. The lease agreement provided that Floyd was working as an independent contractor and “[i]f an accident claim arises out of driver [Floyd’s] negligence[,] the full responsibility of the claim will be [upon Floyd].” Based upon the conflicting provisions of the policy and the lease agreement, Aequicap argues that enforcement of the MCS-90 endorsement is precluded. Aequicap’s argument, however, is without merit.

 

By its unambiguous terms, as emphasized above, the MCS-90 endorsement expressly provides that Aequicap is liable for the payment of any judgment entered in the underlying personal injury action, even if the vehicle was not specifically designated in the policy. The endorsement further provides that no violation of the endorsement’s provisions can relieve Aequicap of its liability. The parties could not avoid responsibility to comply with the applicable regulations by incorporating conflicting terms in its lease. “[I]t is critical that ICC regulations and the lease mandated by them have supreme controlling significance.” (Punctuation and footnote omitted.) Price, 727 F.2d at 496(II). See Simmons, 478 F.2d at 866. The purpose of the federal regulations and endorsement are accomplished by “reading out” those provisions or clauses that conflict with or limit the ability of a third party member of the public to recover for his loss. See T.H.E. Ins. Co. v. Larsen Intermodal Svcs., 242 F.3d 667, 673(II)(A)(1) (5th Cir.2001); Canal Ins. Co. v. First Gen. Ins. Co., 889 F.2d 604, 611(III)(B)(2) (5th Cir.1989), recalled and modified on other grounds at 901 F.2d 45 (5th Cir.1990). Accordingly, the federal regulations and terms of the MCS-90 endorsement control the resolution of this issue. Aequicap is required to pay, within its policy limits, any final judgment recovered by O’Berry in the underlying personal injury action. The trial court’s decision was proper.

 

Judgment affirmed.

 

SMITH, P.J., and PHIPPS, J., concur.

 

As explained infra, a MCS-90 endorsement is a standard endorsement required to be included in a commercial motorcarrier’s insurance policy by 49 C.F.R. § 376.15.

 

The trial court also granted summary judgment in favor of appellee Canal Insurance Company, ruling that Canal’s non-trucking insurance policy issued to the driver, Jeffrey Floyd, did not provide coverage for O’Berry’s claim. Aequicap does not challenge the trial court’s ruling in favor of Canal in this appeal.

 

Aequicap also contends that the trial court erred in failing to consider CDS Transport’s obligation to reimburse it for any amounts paid under the MCS-90 endorsement. But Aequicap failed to file a cross-claim and motion for summary judgment raising this separate issue, and no ruling on the issue was obtained. Because the issue was not properly raised and ruled upon in the proceedings below, it cannot be addressed in this appeal. See Kirkland v. Earth Fare, 289 Ga.App. 819, 821(1), 658 S.E.2d 433 (2008) ( “[W]here a trial court does not rule on an issue, it remains outside the jurisdiction of this Court and we cannot consider it, especially if the issue is one of summary judgment.”) (punctuation and footnotes omitted).

 

Georgia law imposes a similar requirement that motorcarriers maintain a certificate of indemnity insurance, which “must provide for the protection, in case of passenger vehicles, of passengers and the public against injury proximately caused by the negligence of such motorcarrier, its servants, or its agents[.]” OCGA § 46-7-12(a).

 

In the context of workers’ compensation and workplace accidents involving co-workers, the “statutory employee” analysis does not apply. See 49 C.F.R. § 376.12(c)(4); Simpson v. Empire Truck Lines, 571 F.3d 475, 476-478(II) (5th Cir.2009); Judy v. Tri-State Motor Transit Co., 844 F.2d 1496, 1499-1502(II) (11th Cir .1988); Clark v. Roberson Mgmt. Corp., Case No. 5:03CV274 (DF), 2005 U.S. Dist. LEXIS 46972, at *7-10(III)(A)(1) (M.D.Ga. Jan. 11, 2005); Penn v. Virginia Intl. Terminals, 819 F.Supp. 514, 521-523 (E.D.Va.1993). The instant case, however, does not involve an injury sustained by a co-worker, but rather an injury sustained by a member of the public.