United States District Court,D. Puerto Rico.

REAL LEGACY ASSURANCE CO. a/k/a Royal & Sun Alliance Insurance Puerto Rico, Inc., Plaintiff,

v.

SANTORI TRUCKING, INC., et al., Defendants.

Civil No. 05-1394 (GAG).

June 11, 2008.

OPINION AND ORDER

GUSTAVO A. GELPI, District Judge.

Plaintiff Real Legacy Assurance Company d/b/a Royal & Sun Alliance Insurance (Puerto Rico), Inc. (“Royal”) filed suit against Santori Trucking, Inc. (“Santori”) seeking reimbursement of costs its incurred in responding to a gasoline spill. Royal bases its right to reimbursement on a mandatory endorsement attached to the trucker’s insurance policy it issued to Santori. Santori denies that it has an obligation to reimburse Royal. Royal now moves for summary judgment (Docket No. 42) and seeks an order declaring that Royal is entitled to recover from Santori any amount paid to respond to the gasoline spill. Royal further seeks an order awarding it no less than $1,322,134.44, the cleanup and environmental costs Royal paid in responding to the spill. Santori seeks a declaratory judgment that Royal is not entitled to reimbursement (Docket No. 53).

After reviewing the relevant facts and applicable law, the court GRANTS Royal’s motion for summary judgment (Docket No. 42). The court further DENIES Santori’s request for summary judgment (Docket No. 53).

I. Summary Judgment Standard

Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).“An issue is genuine if it may reasonably be resolved in favor of either party at trial, and material if it posses[es] the capacity to sway the outcome of the litigation under the applicable law.”Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir.2006) (alteration in original) (citations and internal quotation marks omitted).

II. Factual Background

On January 21, 1999, Royal issued insurance policy number CLP2075300884 in favor of Santori. The one-year policy included a coverage limit of $1,000,000.00 per occurrence. It also contained a total pollution exclusion. Santori did not purchase what is commonly referred to as the Pollution Liability-Broadened Coverage Endorsement, which would have provided some pollution-related coverage.

Santori qualifies as a motor carrier and, therefore, must adhere to the rules and regulation of the Motor Carrier Act of 1980, 49 U.S .C. § 13906 (“MCA”). MCA regulations mandate that all entities receiving payment to haul others’ property across state lines or transporting hazardous substances have a MCS-90 endorsement attached to any liability policy. See49 C.F.R. § 387.15. The MCS-90 Endorsement states in pertinent part:

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 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…. 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 to 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 that the company would not have been obligated to make under the provisions of the policy except for the agreement contained in this endorsement.

*2Id. (ILLUSTRATION I). The endorsement defines “public liability” as “liability for bodily injury, property damage, and environmental restoration.”Id. “Environmental restoration” means:

Restitution for the loss, damage, or destruction of natural resources arising out of the accidental discharge, dispersal, release or escape into or upon the land, atmosphere, watercourse, or body of water, of any commodity transported by a motor carrier. This shall include the cost of removal and the cost of necessary measures taken to minimize or mitigate damage to human health, the natural environment, fish, shellfish, and wildlife.

Id. The policy Royal issued to Santori contained the required MCS-90 Endorsement.

On July 25, 1999, a Santori truck traveling in Yabucoa, Puerto Rico overturned and spilled approximately 8,000 gallons of gasoline into adjacent land owned by the Conservation Trust of Puerto Rico (“the Conservation Trust”). On August 12, 1999, the Puerto Rico Environmental Quality Board (“EQB”)  ordered Santori and its owner to take immediate steps to detain, regulate, and remediate the spill and its adverse effects. The EQB’s administrative order required Santori to immediately perform environmental studies and submit its results to the EQB’s Land Contamination Regulation Program. The EQB also ordered Santori to reimburse the $3,160.00 in costs it incurred. Santori began some cleanup work but stopped due to a dispute with its insurance company. A subsequent EQB order threatened fines because of Santori’s noncompliance with the prior order. Royal eventually paid various suppliers and environmental cleanup companies to clean, remove, and remediate the spilled gasoline, to prepare the EQB-ordered studies, and to reforest the spill-affected areas. In total, Royal paid $1,322,132.44 to comply with the EQB order issued against Santori. Santori directly hired some of these suppliers and cleanup companies for whose services Royal paid. Royal sent correspondence to Santori reserving its right to seek reimbursement from Santori of the amounts paid to clean the spill.

At the time of the accident, Law 9 of June 18, 1970, as amended, P.R. Laws Ann. tit 12, §§ 1128-1140a (2004), governed the EQB’s operations. Law 416 of September 22, 2004, P.R. Laws Ann. tit. 12, §§ 8002-8002p (2007), now governs the EQB.

The Conservation Trust filed a complaint against Santori, Royal, and others on April 27, 2000. The parties submitted to the court a settlement agreement pursuant to which Royal paid $50,000.00 to the Conservation Trust. The agreement and payment settled all claims brought in the complaint.

Royal requested reimbursement from Santori for $1,000,000.00, the policy’s coverage limit, of the settlement and cleanup costs, invoking the MCS-90 endorsement as the basis for its request. Santori has refused to reimburse Royal and claims it is under no obligation to do so.

III. Discussion

Royal’s summary judgment motion seeks a judgment ordering Santori to reimburse Royal for all expenses it incurred pursuant to the MCS-90 endorsement. More specifically, Royal seeks a judgment of not less than $1,322,134.44, which represents the cleanup costs it incurred. Santori denies that it has any obligation to reimburse Royal. Alternatively, Santori argues that if a right to reimbursement does exist, Royal may recover only the $50,000.00 paid to settle the claims filed by the Conservation Trust. The relevant law reveals that Royal’s position is sound but with a caveat. The court holds that Royal is entitled to reimbursement from Santori but only in the amount of $1,000,000.00, the policy’s per occurrence limit.

The court summarily rejects Royal’s argument that it is a third-party beneficiary of the purchase agreement signed between Santori’s former and current owners. The purchase agreement itself specifically precludes the interpretation Royal suggests. SeeDocket No. 45, Exh. 2, Subsection 6(f) (“The rights, obligations, and prerogatives of any parties under this Contract will NOT … be interpreted to the effects of giving third parties any rights, prerogatives, remedies or claims under the current Contract.”). Subsection 6(f)’s language evidences the parties’ lack of intent to extend benefits to those, like Royal, outside the contract.

A. Right to Reimbursement

In support of its summary judgment motion, Royal contends that the MCS-90 endorsement works a surety bond and entitles Royal to recover from Santori any payments made pursuant to the endorsement. Santori argues that the endorsement operates as traditional insurance and, therefore, does not entitle Royal to reimbursement. The question of whether a right to reimbursement exists under the MCS-90 endorsement presents a pure question of law appropriate for resolution at the summary judgment stage. The court agrees with Royal’s analysis of the legal question presented. Accordingly, the court holds that Royal has the right to seek reimbursement from Santori for any costs incurred pursuant to the MCS-90 endorsement. The MCS-90 endorsement’s plain language, the purpose behind the endorsement, and federal case law interpreting the endorsement support the court’s holding.

The plain, unambiguous language of the MCS-90 endorsement recognizes the insurer’s right of reimbursement. The endorsement states, in pertinent part, “The insured agrees to reimburse the company … 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.”49 C.F.R. § 387.15 (ILLUSTRATION I); see also See Canal Ins. Co. v. Distribution Servs., Inc., 176 F.Supp.2d 559, 565 (E.D.Va.2001) (“[The insured’s] reimbursement obligation is … consistent with … the language … of the MCS-90 endorsement.”). The endorsement also states, “[A]ll 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 [insurer].”49 C.F.R. § 387.15 (ILLUSTRATION I). Pursuant to this language, the MCS-90 does not otherwise alter the limits or exclusions of the underlying insurance contract. Santori’s interpretation of the endorsement would require the court to ignore its unambiguous language and clear mandates. In recognizing Royal’s right to reimbursement, the court is merely enforcing the endorsement’s explicit terms.

The purpose behind the MCS-90 endorsement further supports the court’s conclusion that a right to reimbursement exists. MCS-90 endorsement ensures that a motor carrier has independent financial responsibility to pay for losses sustained by the general public arising out of its operations. The endorsement is designed to protect the public, not the policyholder; the obligation the endorsement creates runs to the public, not to the insured. It seeks to ensure that ultimate responsibility lies with the insured trucking company. See Carolina Cas. Ins. Co. v. E.C. Trucking, 396 F.3d 837, 841 (7th Cir.2005); T.H.E. Ins. Co. v. Larsen Intermodal Servs., Inc., 242 F.3d 667, 672 (5th Cir.2001); Adams v. Royal Indem. Co., 99 F.3d 964, 968-69 (10th Cir.1996); Canal Ins. Co. v. First Gen. Ins. Co., 889 F.2d 604, 611 (5th Cir.1989); Ford Motor Co. v. Transp. Indem. Co., 795 F.2d 538, 544 (6th Cir.1986); Travelers Ins. Co. v. Transp. Ins. Co., 787 F.2d 1133, 1139 (7th Cir.1986); Carolina Cas. Ins. Co. v. Underwriters Ins. Co., 569 F.2d 304, 312 (5th Cir.1978). Allowing reimbursement is consistent with and advances the purpose of the endorsement.

Federal jurisprudence interpreting the MCS-90 solidifies the court’s holding that Royal has a right to seek reimbursement from Santori. Federal law governs the operation and effect of the MCS-90 endorsement. See Minter v. Great Am. Ins. Co., 423 F.3d 460, 470 (5th Cir.2005); T.H.E. Ins., 242 F.3d at 672;John Deere Ins. Co. v. Nueva, 229 F.3d 853, 856 (9th Cir.2000); Harco Nat’l Ins. Co. v. Bobac Trucking, Inc., 107 F.3d 733, 735 (9th Cir.1997); First Gen. Ins., 889 F.2d at 610;Ford Motor Co, 795 F.2d at 545;Wellman v. Liberty Mut. Ins. Co., 496 F.2d 131, 138-39 (8th Cir.1974); In re Yale Express Sys., Inc., 362 F.2d 111, 114 (2d Cir.1966); McGirt v. Royal Ins. Co., 399 F.Supp.2d 655, 661 (D.Md.2005), rev’d in part on other grounds,207 Fed. Appx. 305 (4th Cir.2006); Distribution Servs., 173 F.Supp.2d at 564;Fireman’s Fund Ins. Co. v. CNA Ins. Co., 177 Vt. 215, 230, 862 A.2d 251, 263 (2004); Pierre v. Providence Wash. Ins. Co., 99 N.Y.2d 222, 231, 784 N.E.2d 52, 57 (2002); Lynch v. Yob, 95 Ohio St.3d 441, 445, 768 N.E.2d 1158, 1162 (2002). The available federal authority, which includes a First Circuit case, recognizes that the MCS-90 does not provide insurance coverage per se. Rather, the endorsement creates a suretyship and carries with it a right to reimbursement.See Canal Ins. Co. v. Carolina Cas. Ins. Co., 59 F.3d 281, 283 (1st Cir.1995) (hereinafter Canal v. Carolina ) (“On reflection, we consider the ICC endorsement to be, in effect, [a] suretyship by the insurance carrier to protect the public-a safety net-but not insurance relieving Canal, or any other insurer. On the contrary, it simply covers the public when other coverage is lacking.”); see also Canal Ins. Co. v. Underwriters at Lloyd’s London, 435 F.3d 431, 442 n. 4 (3d Cir.2006); Travelers Indem. Co. v. W. Am. Specialized Trans. Co., Inc., 409 F.3d 256, 260 (5th Cir.2005); Distribution Servs, 320 F.3d at 490;T.H.E. Ins., 242 F.3d at 672;Harco Nat’l, 107 F.3d at 736;Ford Motor Co., 795 F.2d at 546;McGirt, 399 F.Supp.2d at 665-66;Kline v. Gulf Ins. Co., Case No. 1:01-cv-213, 2005 U.S. Dist. LEXIS 30809, at (W.D.Mich. Sept. 12, 2005), aff’d,466 F.3d 450 (6th Cir.2006); Northland Ins. Co. v. N.H. Ins. Co., 63 F.Supp.2d 128, 134 (D.N.H.1999). Implicit is any surety arrangement is the principal’s (insured’s) obligation to reimburse the surety (insurer) for the amount it pays. See McGirt, 399 F.Supp.2d at 666;Kline, 2005 U.S. Dist. LEXIS 30809, at *10-11. Accordingly, when the insurance company pays a claim that is not covered by the policy, the insurance company may attempt to recoup from the insured the amount it paid.

Santori’s argument that the MCS-90 operates as a traditional insurance policy relies upon Puerto Rico contract interpretation law and a recent decision by the Puerto Rico Circuit Court of Appeals. See Indutech Env’t Servs. v. P.R. Am. Ins. Co., KLAN 0300661, 2003 WL 23528979 (P.R. Cir. Aug. 22, 2003). In Indutech, the Puerto Rico appellate court held that the MCS-90 endorsement formed part of the basic insurance policy with the insured, interpreted the endorsement in accordance with state contract interpretation law, construed its’ terms against the insurer, and refused to recognize a right of reimbursement. Id. at *7-8. In so doing, the Indutech court rejected the suretyship principle. The Indutech court’s and Santori’s reliance on Puerto Rico law, however, is misplaced. Both ignore the clear mandate that the meaning and effect of the MCS-90 endorsement is addressed to federal law. Additionally, the Indutech opinion does not reveal that the Puerto Rico court considered the voluminous federal case law describing the MCS-90 as a surety and recognizing the right to reimbursement. The Indutech decision is, thus, of no precedential value and little persuasive value.

Santori attempts to limit the significance of Canal v. Carolina by pointing out that the opinion does not put the reader in a position to know whether the endorsement discussed therein was in the nature of an MCS-90 or MCS-82. Other courts, however, have relied upon Canal v. Carolina for precisely the proposition Royal advances-that the MCS-90 creates a suretyship. See, e.g., Minter, 423 F.3d at 460;T.H.E. Ins., 242 F.3d at 672;McGirt, 399 F.Supp.2d at 65. More importantly, one can infer that Canal v. Carolina dealt with the MCS-90 for two reasons. First, the MCS-82 is not, in fact, an endorsement at all. The regulation refers to the MCS-90 as an “endorsement;” it refers to the MCS-82 as a “surety bond.” 49 C.F.R. § 387.15. Second, it is nonsensical to suggest that the First Circuit would state that it “consider[s]” the MCS-82 “to be, in effect, [a] suretyship by the insurance carrier.”Canal v. Carolina, 59 F.3d at 283 (emphasis added). The MCS-82 is a surety bond on its face. See49 C.F.R. § 387.15 (ILLUSTRATION II).

While arguably dicta in many cases, the court finds persuasive the statements made in these decisions regarding the meaning and effect of the MCS-90 endorsement. See Humphrey’s Executor v. United States, 295 U.S. 602, 627 (1935) (allowing court to follow dicta if “sufficiently persuasive”).

As evidenced by the MCS-90’s plain language, its purpose, and federal case law interpreting it, the endorsement is essentially a surety bond and does not constitute insurance coverage per se. When an insurance policy contains a pollution exclusion clause, the MCS-90 does not actually give the insured pollution coverage in the traditional insurance sense. The endorsement creates a suretyship by the insurer to protect the public when the underlying insurance policy otherwise provides no coverage to the insured. The endorsement assures the government that the insurer will respond in the event of an environmental incident. It also reserves the insurance carrier’s right to seek from the insured reimbursement of environmental restoration payments made to third parties pursuant to the endorsement.

For the reasons discussed above, the court holds that Royal has the right to seek reimbursement from Santori for costs incurred pursuant to the MCS-90 endorsement.

B. Amount of Reimbursement Due

The court now turns to the question of the amount of reimbursement to which Royal is entitled. Santori concedes that, if a right to reimbursement exists, it must reimburse the $50,000.00 Royal paid to settle the Conservation Trust suit. Conversely, Santori contests its obligation to pay any of the $1,322,132.44 Royal paid to comply with the EQB administrative order. The only question remaining for the court to answer is what portion, if any, of the $1,322,132.44 paid to environmental consultants must Santori reimburse to Royal. The court holds that the MCS-90 endorsement entitles Royal to reimbursement of the $50,000.00 paid to the Conversation Trust and $950,000.00 of the cleanup expenses Royal incurred in complying with the EQB Order, for a total of $1,000,000.00.

In order to obtain reimbursement based on the MCS-90 endorsement, Royal must demonstrate that it made payments pursuant to the endorsement. The uncontested facts reveal that the insurance policy excluded coverage for the gasoline spill; the policy’s unambiguous pollution exclusion applied to the July 25, 1999 incident. The policy therefore did not obligate Royal to pay the cleanup and remediation costs. Nothwithstanding, Royal paid at least $1,322,132 .44 in environmental restoration costs. The parties agree that Royal paid the Conservation Trust settlement pursuant to the MCS-90 endorsement. The parties disagree, however, regarding whether Royal acted pursuant to an obligation created by the MCS-90 endorsement when it made payments to comply with the EQB order.

The EQB order imposed a legal liability or obligation upon Santori to conduct environmental restoration activities. The MCS-90 seeks to ensure that carriers have sufficient economic resources to conduct precisely this type of activity. Royal immediately paid for the environmental restoration activities that Santori was legally obligated to conduct. In such circumstances and in accordance with the public protection purpose behind the endorsement, the court holds that Royal was responsible for the costs under the MCS-90 endorsement. Royal made environmental restoration payments pursuant to the endorsement and is, consequently, entitled to reimbursement of a portion of the money it expended.

The MCS-90 endorsement required Royal to pay only up to the policy limit-$1,000,000.00 per occurrence. See49 C.F.R. § 387.15 (ILLUSTRATION I) (requiring insurer to pay public liability judgments “within the limits of liability [in the policy]”); Stevens v. Fireman’s Fund Ins. Co., Case No. 2:01-CV-275, 2002 U .S. Dist. LEXIS 28156, at *18-21 (S.D.Ohio Nov. 6, 2002) (holding insurer’s potential liability under MCS-90 endorsement constrained by stated policy limit), aff’d,375 F.3d 464 (6th Cir.2004); Hamm v. Canal Ins. Co., 10 F.Supp.2d 539, 545-48 (M.D.N.C.1998) (concluding policy’s per accident limit established insurer’s maximum liability under MCS-90 endorsement), aff’d,173 F.3d 1283 (4th Cir.1999). Accordingly, Royal cannot claim to have incurred expenses above $1,000,000.00 pursuant to the MCS-90 endorsement. Reimbursement of amounts over $1,000,000.00 on the basis of the endorsement is unwarranted. Royal has not placed the court in a position to determine, and the court will not speculate regarding, whether Royal may recover the remaining amount it expended under another legal theory.

In light of the foregoing, the court holds that Santori must reimburse Royal the $1,000,000.00 Royal expended pursuant to the MCS-90 endorsement.

V. Conclusion

For the foregoing reasons, the court GRANTS Royal’s motion for summary judgment (Docket No. 42) but limits the reimbursement amount to $1,000,000.00. The court DENIES Santori’s motion for summary judgment (Docket No. 53).

The court DECLARES that Royal is entitled to reimbursement from Santori in the amount of $1,000,000.00 and ORDERS Santori to pay Royal that amount. Any interest, costs, or fees shall be requested by motion to the court. Judgment shall enter accordingly.

SO ORDERED.

United States District Court,M.D. Georgia,Columbus Division.

Bobby WATERS, Plaintiff,

v.

Mel MILLER, individually and d/b/a Fast Action Auto Transport; Progressive Casualty Insurance Company; and Progressive Express Insurance Company, Defendants.

June 5, 2008.

ORDER

CLAY D. LAND, District Judge.

This case arises from an automobile accident caused when Plaintiff Bobby Waters’s vehicle was rear-ended by the tractor-trailer owned, operated, and driven by Defendant Mel Miller (“Miller”) and allegedly insured by Defendants Progressive Casualty Insurance Company and Progressive Express Insurance Company (collectively, “Progressive”). Presently pending before the Court is Progressive’s Motion for Final Summary Judgment (Doc. 41). For the following reasons, Progressive’s motion is granted.

BACKGROUND

I. Factual Background

At the time of the events giving rise to this litigation, Miller, d/b/a Fast Action Auto Transport, owned a tractor-trailer combination which he used to haul automobiles. Miller secured a commercial vehicle insurance policy on his tractor-trailer through Progressive (the “Policy”). The Policy had a liability limit of one million dollars. Coverage under the Policy began on September 11, 2004 and ended on September 11, 2005. The Policy covered the tractor-trailer for damage occurring within a 300-mile radius of Keystone Heights, Florida, the “garaging zip code.” (See Ex. A to Progressive’s Statement of Undisputed Material Facts at 2-3.)

Miller admits that he was frequently late making the premium payments due under the Policy. (Miller Dep. 156:8-9, May 16, 2007.) Prior to September 11, 2005, Progressive sent Miller five separate cancellation notices informing him that his failure to make payment would cause his insurance to lapse. Miller failed to pay the premium by September 11, 2005, and the Policy expired. On November 29, 2005, Miller was hauling autos in his tractor-trailer from Florida to Georgia when he rear-ended Plaintiff Bobby Waters in Columbus, Georgia. As a result of the accident, Plaintiff suffered severe injuries requiring surgical treatment. Progressive denied coverage of Miller’s claim, explaining that the Policy had expired on September 11, 2005 due to non-payment of premiums.

II. Procedural Background

Plaintiff filed his original Complaint in Superior Court of Muscogee County. Plaintiff sought a declaratory judgment against Progressive declaring that the Policy provided coverage for the accident in question. After Defendants removed the case to this Court, the parties filed cross-motions for summary judgment. At issue was whether Progressive complied with Florida law requiring insurance coverage to remain in effect-even after cancellation of a policy-until the insurer informs the Florida Department of Highway Safety and Motor Vehicles of the policy’s cancellation. In an Order dated July 31, 2007, the Court denied Plaintiff’s motion and granted Progressive’s motion. The Court first determined that it was undisputed that the Policy was issued by Defendant Progressive Express, and thus Progressive Casualty was entitled to summary judgment. The Court then determined that under Florida law, the Policy provided no coverage for the accident and granted Progressive Express’s motion for summary judgment.

Plaintiff filed a motion for reconsideration, urging the Court to reexamine Plaintiff’s contention that federal law provided Plaintiff with a basis for coverage. The Court granted Plaintiff’s motion in part and directed Defendants to file a motion for summary judgment as to Plaintiff’s federal law claim, which they have now done.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.”Fed.R.Civ.P. 56(c). The moving party has the burden of showing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This burden can be met by showing that the non-moving party will be unable to “establish the existence of an element essential to [the non-moving party’s] case, and on which [the non-moving party] will bear the burden of proof at trial.”Id. at 322.

Once the moving party has met its burden, the burden shifts to the non-moving party to show that there is a genuine issue of material fact. Id. at 324.A fact is material if it “might affect the outcome of the suit.”Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). There is a genuine issue if the evidence would allow a reasonable jury to find for the non-moving party. Id. In other words, the inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”Id. at 251-52.

In determining if the parties have met their respective burdens, the Court resolves “all reasonable doubts about the facts in favor of the non-movant, and draw[s] all justifiable inferences in his … favor.”Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993) (internal quotation marks and citation omitted). Additionally, “[i]f reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment.”Augusta Iron & Steel Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856 (11th Cir.1988) (internal quotation marks and citation omitted).

DISCUSSION

I. Motion for Summary Judgment

The Motor Carrier Act of 1980, 49 U.S.C. § 10101 et seq., and the regulations promulgated thereunder require certain interstate motor carriers to obtain an insurance policy containing “a special endorsement … providing that the insurer will pay within policy limits any judgment recovered against the insured motor carrier for liability resulting from the carrier’s negligence [.]”Ill. Cent. R.R. Co. v. Dupont, 326 F.3d 665, 666 (5th Cir.2003). This endorsement is commonly known as an “MCS-90” or “ICC” endorsement.

A. The MCS-90 Endorsement

“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.”John Deere Ins. Co. v. Nueva, 229 F.3d 853, 857 (9th Cir.2000); see also49 C.F.R. § 387.1 (“The purpose of these regulations is … to assure that motor carriers maintain an appropriate level of financial responsibility for motor vehicles operated on public highways.”). 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.”T.H.E. Ins. Co. v. Larsen Intermodal Servs., Inc., 242 F.3d 667, 671 (5th Cir.2001). The MCS-90 endorsement applies “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.”49 C.F.R. § 387.15ill. I. Cancellation of the endorsement is only effective upon “the company or the insured … giving (1) thirty-five (35) days notice in writing to the other party … and(2) if the insured is subject to FMCSA’s [the Federal Motor Carrier Safety Administration’s] jurisdiction, by providing thirty (30) days notice to the FMCSA.”49 C.F.R. § 387.15, ill. I. In sum, the MCS-90 endorsement is “in effect, suretyship by the insurance carrier to protect the public-a safety net …. [I]t simply covers the public when other coverage is lacking.”T.H.E. Ins. Co. 242 F.3d at 672 (internal quotation marks and citation omitted).

The insurer is not without recourse when it is obligated to provide coverage under an MCS-90 endorsement. When the insurer is required to make a payment it would not have made but for operation of the endorsement, the insurer may recover such payments from the insured. 49 C.F.R. § 387.15ill. I. (“The insured agrees to reimburse the company for any payment made by the company … 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 [the MCS-90] endorsement.”).

Plaintiff contends that because Progressive failed to notify the FMCSA that the Policy was cancelled, the MCS-90 endorsement remains in effect and provides coverage for the accident in question. See49 C.F.R. § 387.15 (“Endorsements to policies of insurance … will remain in effect continuously until terminated ….”). It appears that the Policy does not physically contain an MCS-90 endorsement. (See Ex. A to Progressive’s Statement of Undisputed Material Facts at 20, “Index of Endorsements”.) Plaintiff contends, however, that the Court should incorporate the endorsement into the Policy as a matter of law. For the following reasons, the Court declines to do so.

B. Whether MCS-90 Endorsement Should be Incorporated into Policy as a Matter of Law

The precise issue before the Court appears to be undecided in the Eleventh Circuit. Some courts from other jurisdictions have found that the MCS-90 endorsement becomes part of an insurance policy as a matter of law even when the endorsement is not physically attached to the policy itself. See, e.g., Hagans v. Glens Falls Ins. Co., 465 F.2d 1249, 1252 (10th Cir.1972) (assuming that because “all parties proceed on the premise that the policy … contains” the required endorsement, the endorsement became part of the policy); see also Prestige Cas. Co. v. Mich. Mut. Ins. Co., 99 F.3d 1340, 1348 n. 6 (6th Cir.1996) (citing Hagans for the proposition that “[a]lthough the ICC endorsement in fact is not attached to [the insurer’s] policy, [the insurer] acknowledges it is incorporated as a matter of law.”); Travelers Ins. Co. v. Transp. Ins. Co., 787 F.2d 1133, 1139 (7th Cir.1986) (citing Hagans for the proposition that the MCS-90 “endorsement may be read into a policy certified to the [federal agency governing interstate commerce] as a matter of law”).

This case is distinguishable from Hagans for at least two reasons. First, the Court is unconvinced that Hagans stands for the proposition that an MCS-90 endorsement should automatically be read into an insurance policy when it is not physically attached to the policy itself. In Hagans, the court simply assumed that the endorsement was incorporated into the policy because the parties acted as though it was. See Hagans, 465 F.2d at 1252;see also Howard v. Quality Xpress, Inc., 128 N.M. 79, 82, 989 P.2d 896 (N.M.Ct.App.1999) (finding that Hagans did not stand for the proposition that “the Tenth Circuit will read an ICC endorsement into a policy, even where it is lacking”). In this case, no party suggests that the MCS-90 was intentionally included in the Policy, and Progressive certainly does not concede that the MCS-90 was incorporated into the Policy as a matter of law. Cf. Prestige Cas. Co., 99 F.3d at 1348 n. 6. (noting that the insurer acknowledged that the ICC endorsement was incorporated as a matter of law).

This case is also distinguishable from Hagans because in that case, the insurer “filed a certificate of insurance with the Interstate Commerce Commission certifying that it had issued [the insured] a policy which was amended by attachment of [the MCS-90 endorsement] in order to be in conformity with the Commission’s rules and regulations.”Hagans, 465 F.2d at 1252. When an insurer affirmatively represents to the federal government that the policy issued to its insured complies with federal law, a reasonable argument can be made that the insurer should be estopped from denying the existence of the endorsement. In this case, however, Plaintiff has directed the Court to no evidence in the record indicating that Progressive ever certified the policy to the federal government.Because the circumstances of this case are materially different from those presented in cases such as Hagans, those cases are inapposite.

Although Plaintiff urges the Court to follow the approach taken in Hagans, this case is more similar to those cases in which courts have refused to incorporate the MCS-90 endorsement into a policy as a matter of law. The Fifth Circuit addressed the issue in a factually-similar case in Illinois Central Railroad Co. v. Dupont, 326 F.3d 665 (5th Cir.2003). In Dupont, the Railroad sued a logging company when one of the logging company’s drivers collided with the Railroad’s train. The logging company driver was hauling logs for the company, but he was driving his own truck when the accident occurred. Although an MCS-90 endorsement was required by law, the insurance policy at issue did not contain one. The Fifth Circuit had to decide whether the policy would be deemed to include the federally-mandated endorsement, which would provide coverage for the accident despite the truck not being specifically described in the policy. Id. at 666-67;see also49 C.F.R. § 387.15ill. I (requiring insurer to pay final judgments “regardless of whether or not each motor vehicle is specifically described in the policy”).

The court held that “the failure to include the endorsement in the policy cannot give rise to the remedy the Railroad seeks, namely a reformation of the policy deeming the endorsement to be a part of the policy.”Dupont, 326 F.3d at 668. The court reasoned that the regulations place the burden on the insured, not the insurer, to obtain the necessary insurance coverage, including any necessary endorsements. Id. at 669.The court first “question[ed] the fairness of placing a duty on insurance companies to determine whether an insured is a motor carrier for hire, who engages in the interstate shipment of non-exempt goods, using non-exempt vehicles, and is otherwise subject to the Motor Carrier Act and its complex regulations.”Id. In addition, the court determined that imputing the endorsement into the policy “would create a perverse incentive” for motor carriers, who “would have an incentive not to comply with the regulations and obtain the endorsement and pay the additional premium associated with it, knowing that the courts would deem the endorsement part of the policy whether or not it was requested by the carrier.”Id.

Other courts have also found that it is the insured’s responsibility to inform the insurer of its need for interstate coverage. These courts reason that “a plain reading of the motor carrier regulations indicates that they place the burden of compliance on the motor carrier not the insurer” and that “insurance companies have no general duty to advise an insured as to the insured’s coverage needs.”See, e.g., Brewer v. Maynard, Civil Action No. 2:02-0048, 2007 WL 2119250, at *2-3 (S.D.W.Va. July 20, 2007). In the absence of evidence showing that the insured informed the insurer of its need for interstate coverage, these courts refuse to engraft the MCS-90 endorsement onto a policy as a matter of law. See id.(declining to incorporate MCS-90 into policy where the plaintiff never informed the insurer that she was traveling interstate even when insurance application form indicated that her business operated in multiple states); Howard, 128 N.M. at 82, 989 P.2d 896 (refusing to incorporate MCS-90 into the policy when “nothing in the record indicates that … [the] insurer had any basis to believe that the insurance contract needed to” comply with federal regulations); Thompson v. Eroglu, No. 05 MA 40, 2006 WL 3849286, at(Ohio Ct.App. Dec. 29, 2006) (finding in favor of insurer who “was unaware of [the insured’s] interstate hauling” and observing that “the fact that [the insured] transported waste in interstate commerce and should have been subject to the federal regulations does not mean that he actually complied with the applicable federal regulations”).

In this case, the essence of Plaintiff’s argument is that because Progressive knew or should have known that Miller required interstate coverage, the burden of ensuring compliance with the federal regulations should be shifted to Progressive. The Court finds Plaintiff’s argument unavailing. The only record evidence that could reasonably support the conclusion that Progressive knew or should have known that Miller was driving the tractor-trailer out of state is the 300-mile radius term contained in the Policy.Progressive’s Rule 30(b)(6) witness, Christine Somrak, could not testify “one way or the other whether [Progressive] knew or should have known that [Miller] was involved in interstate travel.”(Somrak Dep. 105:14-19, May 9, 2007.) At most, Somrak agreed that under the terms of his policy, Miller “could be involved in interstate travel,” and Miller’s premiums were “based on him traveling 300 miles” from Keystone Heights, Florida. (Id. at 106:3-6, 21-23 (emphasis supplied).) Somrak testified that Progressive must “rel[y] on the representations of its applicants for insurance as to whether they will be operating in interstate or intrastate commerce.”(Id. at 145:1-5.)In light of the foregoing authorities, the mere possibility that Miller may have traveled out of state at some point after the inception of the Policy is insufficient to warrant the type of burden-shifting that Plaintiff urges.Cf. Kline v. Gulf Ins. Co., 98 F. App’ x 471, 475 (6th Cir.2004) (finding that a genuine issue of material fact existed as to whether MCS-90 endorsement was included in policy because, for example, (1) insurance quotes provided to the company contained the endorsement; (2) prior policies contained the endorsement and the new premiums matched those of the prior policies; (3) correspondence between the parties contemplated the inclusion of the endorsement; and (4) copies of the policy provided to the reinsurer contained the endorsement).

Although the Court recognizes that the underlying purpose of the MCS-90 endorsement is to protect injured members of the public such as Plaintiff, the present record contains insufficient evidence to allow a reasonable finder of fact to conclude that Progressive knew or should have known that Miller was driving his tractor-trailer out of state. The Court therefore declines to rewrite the parties’ agreement to include the MCS-90 endorsement. For these reasons, Progressive is entitled to summary judgment on Plaintiff’s claims.

II. Request for Leave to File Interlocutory Appeal

Plaintiff requests that the Court certify for immediate appeal the questions articulated in his responses to Progressive’s motions for summary judgment, pursuant to 28 U.S.C. § 1292(b). This section requires a party to show that (1) “such order involves a controlling question of law as to which there is substantial ground for difference of opinion” and (2) “that an immediate appeal from the order may materially advance the ultimate termination of the litigation.”28 U.S.C. § 1292(b). The Eleventh Circuit has determined that interlocutory appeal should be granted

only on (1) pure questions of law, (2) which are controlling of at least a substantial part of the case, (3) and which are specified by the district court in its order, (4) and about which there are substantial grounds for difference of opinion, (5) and whose resolution may well substantially reduce the amount of litigation necessary on remand.

McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1264 (11th Cir.2004). Because it appears that neither the Eleventh Circuit nor the Florida Supreme Court has directly addressed the issues presented in the motions for summary judgment in this case, the Court finds that substantial ground for difference of opinion may exist as to the controlling legal issues that formed the basis of the Court’s summary judgment rulings. In addition, because resolution of these issues will determine who may be financially liable and what financial resources may be available to remedy the damages suffered by Plaintiff, the Court finds that the resolution on appeal of the issues presented in the summary judgment motion decided by the Court today and the Court’s July 31, 2007 ruling may substantially reduce the amount of litigation necessary on remand. Accordingly, the Court grants Plaintiff’s request for leave to file interlocutory appeal.

CONCLUSION

For the reasons stated herein, Progressive’s Motion for Final Summary Judgment (Doc. 41) is granted. In addition, Plaintiff’s request for leave to file interlocutory appeal is granted.

IT IS SO ORDERED.

The Court’s Order vacated only “that part of its Order that granted summary judgment to [the Progressive] Defendants on all of Plaintiff’s claims.”Order Granting Defs.’ Mot. for Recons. 2, Aug. 22, 2007. Thus, the only claim that will be adjudicated by this Order is Plaintiff’s federal law claim against Defendant Progressive Express.

Miller testified that sometime after he obtained the Policy, he secured a certificate of insurance from Progressive for the purpose of obtaining apportioned tags for out-of-state travel. (See Miller Dep. 149:3-151:9.) However, there is no evidence that Miller ever informed Progressive that he required the certificate of insurance for this purpose. Even if, as Plaintiff alleges, a Progressive agent faxed the certificate directly to the Florida State Department of Highway Safety and Motor Vehicles, the record contains no evidence that Progressive ever certified the Policy to the federal government.

The record is clear that at the time the Policy was issued, Miller was not engaged in interstate travel. (Miller Dep. 152:4-10.) This fact, too, bolsters the conclusion that the endorsement should not be incorporated into the Policy as a matter of law, as it undermines the inference that the parties contemplated interstate coverage when they entered into the contractual agreement. See, e.g., Howard, 128 N.M. at 82, 989 P.2d 896 (noting that the insured’s need for interstate coverage is material to the issuance of a policy because of the insurer’s need to comply with regulatory requirements on behalf of the insured and because interstate coverage would likely affect the amount of premium charged by the insurer).

As additional support for his position, Plaintiff points out that (1) Progressive’s authorized representative issued a Certificate of Insurance to the State of Florida confirming this 300-mile radius when Miller applied for a U.S. Department of Transportation number and apportioned tag authorizing him to engage in interstate transportation in Florida, Georgia, Alabama, and South Carolina; (2) Miller’s premiums were higher before the accident, indicating that Progressive calculated his premiums in an amount commensurate with its knowledge of Miller’s interstate travel; and (3) Miller received a speeding ticket on November 5, 2005 in Georgia and Defendants had actual knowledge of this ticket. These contentions are largely unsupported by the record. As previously mentioned, the record does not indicate that Miller informed his agent that he required a certificate of insurance so that he could engage in interstate travel. In addition, Miller was driving a personally-owned vehicle when he received his November 2005 ticket, and the Policy had already lapsed for non-payment at that time. Finally, the record shows that Miller was charged more for the coverage he obtained following the accident. Prior to the accident, Miller was charged $10,741 for a 12-month policy with a $1,000,000 combined single limit of liability. The premium on the subsequent policy, which provided $750,000 of coverage, was $4668 for six months, or $9336 for the year. Miller was thus charged $.0107 for each dollar of coverage under the Policy and $.0124 for each dollar of coverage under the subsequent policy. In other words, every dollar of Miller’s premium purchased $93.10 of coverage under the Policy; under the subsequent policy, every dollar of Miller’s premium purchased only $80.33 of coverage. In sum, this record evidence cannot support the inference that Progressive knew or should have known that Miller was driving the insured vehicle out of state.

Progressive also contends that it does not issue policies with radii of less than 200 miles. Thus, under Plaintiff’s interpretation of the law, Progressive “would be forced to insert an MCS-90 endorsement into every policy it issues to any person who lives closer to the state line than [the policy’s] stated radius[,]” and “in some states, an MCS-90 endorsement would be automatic.”(Defs.’ Reply 2.) This example illustrates the importance of placing the burden on the insured to request the proper level of coverage.

Plaintiff seeks permission to file an interlocutory appeal of today’s Order and the Court’s previous July 31, 2007 Order that granted summary judgment to Progressive under Florida law.