Jonathan JONES, Plaintiff

v.

Bradley A. BLANKENSHIP and Willis Shaw Express, Inc., Defendants.

 

Nov. 13, 2007.

 

 

OPINION AND ORDER

KAREN K. CALDWELL, District Judge.

This matter is before the Court on Defendant Willis Shaw Express, Inc.’s Motion for Partial Summary Judgment as to Punitive Damages [R. 60]. For the reasons given below, this Motion is GRANTED.

 

I. Factual and Procedural Background

 

This action concerns a collision between an automobile and a tractor-trailer which occurred on Interstate 75 in Rockcastle County, Kentucky, on September 6, 2004. Plaintiff Randall Walker, a resident of Tennessee, was the driver of the automobile. Bradley Blankenship, a Defendant in a consolidated claim that has since been settled, was the driver of the tractor-trailer. Defendant Willis Shaw Express, Inc. [hereinafter “Willis Shaw”], an Arkansas corporation, was Blankenship’s employer.

 

On the day of the collision, Blankenship drove the tractor-trailer around a curve in the interstate. Blankenship Depo., p. 41. Further up the interstate, where Walker’s car was situated, traffic had slowed to a stop. Walker Depo., pp. 68-69. Blankenship stated that he first saw Walker’s car where traffic was stopped approximately one half-mile ahead of him. Blankenship Depo., p. 43. Upon seeing Walker’s upcoming car, Blankenship attempted to brake and swerve out of the way. Id. at 42.When Walker noticed the tractor-trailer approaching behind him, he also attempted to move aside to avoid being hit. Walker Depo., p. 69-70. Unfortunately, the parties’ efforts were of no avail, as Blankenship struck Walker’s car from behind. Both vehicles were damaged, and Walker was seriously injured. Defendant’s Motion for Partial Summary Judgment, p. 1.

 

The tractor-trailer was 53 feet long, and with the load being carried, it weighed approximately 75,000 pounds. Blankenship Depo., p. 34. Blankenship stated that he was going the speed limit of 65 miles per hour when he first saw Walker’s car, and was driving in top gear. Id. at 40.According to Walker, Blankenship apologized for the accident and said that he “could not stop.” Blankenship also indicated that he had not expected traffic to be stopped as it was and was unable to stop in time. Id. at 47-49.

 

Walker brought suit against Willis Shaw, alleging that Blankenship caused the auto collision by negligently operating the tractor-trailer, and that Willis Shaw is vicariously liable by virtue of being Blankenship’s employer. Walker claims both compensatory damages and punitive damages. Walker’s case was removed to this Court from the state court based on diversity jurisdiction. Once removed, Willis Shaw moved for partial summary judgment on the issue of punitive damages, arguing that it cannot properly be held liable for such damages.

 

II. Summary Judgment Standard

 

Under the Federal Rules of Civil Procedure, summary judgment should be granted to the movant where “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). When considering whether summary judgment is appropriate, the Court is to view the facts presented and all inferences therefrom in a light most favorable to the nonmoving party. 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir.1987).

 

The initial burden is on the moving party to demonstrate the genuine absence of any issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), a burden which may be met by demonstrating the absence of evidence supporting an essential element of the non-movant’s claim. Id. at 322-25.Once this initial burden is met by the movant, the burden of production is then shifted to the non-movant to “set forth specific facts showing that there is a genuine issue for trial.”FED.R.CIV.P. 56(E). TO MEET THIS SHIFTED burden, the non-movant is required to go beyond its pleadings and previous allegations and present evidentiary material sufficient for a jury to reasonably find for the party. Celotex, 477 U.S. at 324;Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial .”Celotex, 477 U.S. at 322.

 

III. Analysis

 

Since this action is within the Court’s subject-matter jurisdiction via diversity of citizenship of the parties, Kentucky law governs the disposition of this Motion. Under Kentucky law, the recovery of punitive damages is governed by Kentucky Revised Statute [hereinafter “KRS”] section 411.184. See, e.g., McGonigle v. Whitehawk, 481 F.Supp.2d 835, 841 (W.D.Ky.2007); Stewart v. Estate of Cooper, 102 S.W.3d 913 (Ky.2003); Berrier v. Bizer, 57 S.W.3d 271 (Ky.2001).KRS § 411.184 states that punitive damages can only be recovered if the plaintiff proves that the defendant acted with “oppression, fraud or malice.” KY.REV.STAT. ANN. § 411.184(2) (2007). The Kentucky Supreme Court has held the statute’s strict definition of the term “malice” unconstitutional; instead, the Court held that conduct amounting to common-law “gross negligence” is sufficient for the imposition of punitive damages.Williams v. Wilson, 972 S.W.2d 260 (Ky.1998). Reliance on KRS § 411.184 is proper despite this negative holding from the Kentucky Supreme Court. The Court’s holding only affected subsection (1)(c) of the statute. The remainder of the statute has not been held unconstitutional by the Kentucky courts. See Berrier, 57 S.W.3d at 283-84 (“Although KRS 411.184(1)(c) was declared unconstitutional …, the opinion specifically did not purport to affect other provisions of the statute.”(citations omitted)).

 

Gross negligence has been defined as a “ ‘wanton or reckless disregard for the safety of other persons’ such that the offending conduct is so outrageous that malice could be implied from the facts of the situation.”Estate of Presley v. CCS of Conway, 2004 U.S. Dist. LEXIS 9583, at (W.D.Ky. May 18, 2004) (quoting Phelps v. Louisville Water Co., 103 S.W.3d 46, 52 (Ky.2003)). Walker does not appear to base his claim for punitive damages on any “oppression” or “fraud” in Blankenship’s acts, but on the assertion that a jury could find that Blankenship’s driving at the time of the collision amounted to gross negligence.

 

Walker claims punitive damages not against Blankenship himself, however, but against Blankenship’s employer, Willis Shaw. KRS § 411.184 states that, “[i]n no case shall punitive damages be assessed against a principal or employer for the act of an agent or employee unless such principal or employer authorized or ratified or should have anticipated the conduct in question.”KY.REV.STAT. ANN. § 411.184(3) (2007). Thus, in order for Walker to be able to recover punitive damages against Willis Shaw, he must prove both gross negligence on the part of Blankenship, the employee, and that Willis Shaw, the employer, “authorized, ratified, or should have anticipated” Blankenship’s gross negligence. McGonigle, 481 F.Supp.2d at 841.

 

Willis Shaw contests both elements of this claim. It contends that Blankenship’s conduct at the time of the collision cannot be considered gross negligence. Further, Willis Shaw argues that even if Blankenship’s conduct could be considered gross negligence, it cannot be liable for punitive damages because it never authorized, ratified, or should have anticipated the conduct. Willis Shaw’s Motion for Partial Summary Judgment, p. 4-9. Walker contends that Blankenship’s gross negligence is a question for the jury to decide, and that Willis Shaw “authorized” its driver, Blankenship, to drive and should have “anticipated” that Blankenship might experience driving problems since he was a relatively new driver at the time. Walker’s Response, p. 5. The Court expresses no opinion on whether Blankenship’s driving amounted to gross negligence, for it is clear that Walker cannot prove that Willis Shaw authorized, ratified, or should have anticipated Blankenship’s conduct, even if it in fact constituted gross negligence. Willis Shaw is therefore entitled to partial summary judgment on Walker’s claim for punitive damages.

 

Under Kentucky law, it is very difficult to obtain punitive damages against an employer for the negligent acts of its employees. See McGonigle, 481 F.Supp.2d at 842 (“Very few cases on record have recognized vicarious liability for punitive damages.”); Berrier, 57 S.W.3d at 283 (“Kentucky is the only state with a statute that so broadly limits vicarious liability for punitive damages.”). The Kentucky Supreme Court has only allowed vicarious liability for punitive damages “when the employer was aware that the employee had previously engaged in similar unacceptable behavior or when the employer condoned the wrongful action taken by the employee.”Estate of Presley, 2004 U.S. Dist. LEXIS 9583, at * 13. Stating that Willis Shaw “authorized” the purported grossly negligent driving simply by authorizing Blankenship to drive tractor-trailers is not enough for purposes of liability under KRS § 411.184(3). Such a conclusion would automatically impute liability to an employer in every action for punitive damages, a completely illogical result under state law that purports to strongly limit vicarious liability for punitive damages. See Berrier, 57 S.W.3d at 283.

 

Instead, for Walker to prove that Willis Shaw “authorized” or “should have anticipated” Blankenship’s acts, he must present evidence that during Blankenship’s employment with Willis Shaw, Blankenship exhibited a pattern of conduct similar to the alleged gross negligence, such that Willis Shaw should have reasonably expected the conduct to recur. See Estate of Presley, 2004 U.S. Dist. LEXIS 9583, at * 13-14 (documenting Kentucky cases addressing punitive damages liability for employers and finding that liability is predicated upon the employer’s knowledge of a pattern of unacceptable conduct previously committed by the employee similar to the conduct complained of); see also Berrier, 57 S.W.3d 271;Ky. Farm Bureau Mut. Ins. Co. v. Troxell, 959 S.W.2d 82 (Ky.1997); Kroger Co. v. Willgruber, 920 S.W.2d 61 (Ky.1996). In McGonigle, 481 F.Supp.2d at 841-42, the court also emphasized that it is only an employee’s pattern of similar conduct that occurs during the time of his employment that should cause an employer to “anticipate” the grossly negligent act. Id.; see also Troxell, 959 S.W.2d at 86.

 

Walker has offered no evidence indicating that Blankenship evinced a pattern of grossly negligent conduct, similar to that alleged in the complaint, such that Willis Shaw should have anticipated any gross negligence that Blankenship committed at the time of the collision. Blankenship successfully completed a tractor-trailer driving program and a certified training program pursuant to beginning his employment with Willis Shaw, and during his employment, he had never been cited for any moving violations. Blankenship Depo. pp. 9-10, 13-14. During his employment, Blankenship had been involved in two very minor driving accidents. However, the circumstances of these are so dissimilar, even trivial, when compared to the complained-of accident that they cannot reasonably be viewed as a pattern of conduct such that Willis Shaw should have anticipated gross negligence, leading to a serious auto collision. Both of these prior accidents involved situations where Blankenship was pulling a tractor-trailer into a parking space at a truck stop. In the first incident, Blankenship backed into a parking space and hit the side-view mirror on the truck beside him, breaking it. The second occurred when Blankenship attempted to make a left turn into a parking space: another truck simultaneously went for the same space, Blankenship swerved left to avoid hitting the truck, and his trailer tires bent the front bumper of a parked truck. Id. at 13-14.Neither of these accidents are even remotely similar, or nearly as serious, as the accident complained of. Putting it mildly, it is difficult to believe that these two parking mishaps could possibly amount to pattern of acts such that Blankenship’s employer should foresee gross negligence in a two-vehicle highway collision. Blankenship was not involved in any other auto accident, either as a company trucker or as a private citizen. Id. at 14.Moreover, being a relatively new employee, as Blankenship was at the time of the accident, is no reason, in and of itself, for Willis Shaw to anticipate that Blankenship would commit gross negligence in driving a truck up an interstate, particularly after undergoing the requisite vocational training and certification requirements for driving trucks. Punitive damages are an inappropriate remedy against Willis Shaw.

 

The Court’s conclusion that Willis Shaw cannot be vicariously liable for punitive damages is supported by similar cases applying KRS § 411.184(3). In Estate of Presley, one truck driver was speeding up an interstate when he crossed the median into another lane of traffic, causing the plaintiff to hit him and be crushed by another truck coming up from behind. Estate of Presley, 2004 U.S. Dist. LEXIS 9583, at *4. The plaintiff sued the employers of both truckers, seeking punitive damages based on their “authorizing, ratifying, or failing to anticipate” the truckers’ gross negligence. Id. at * 12.The court held that neither employer could have anticipated any gross negligence that may have been committed by their truckers, despite the fact that one of the truckers had been previously cited for moving traffic violations, running a red light, and speeding on several occasions, and the other trucker’s employer did not even have driving safety/training policies in place at all. Id. at *15-16.According to the court, “Plaintiffs have offered no evidence that either employer should have anticipated the accident.”Id. at * 15.

 

A further example is McGonigle, 481 F.Supp.2d 835. In McGonigle, the plaintiff’s car was rear-ended at a stop light by the defendant’s employee, who was driving while intoxicated. Id. at 837.Prior to his employment with the defendant, the driver had twice been convicted of driving while intoxicated.Id. at 837-38.Nevertheless, the court refused to hold the employer liable for punitive damages over the conduct of its employee driver, concluding that despite these past convictions, the employer could not have anticipated that its employee would cause an accident while driving intoxicated. Id. at 842.Though the court placed emphasis on the fact that these convictions occurred before the driver’s employment with the defendant, id., the McGonigle driver’s past convictions were for the exact same kind of incident that the plaintiff complained of-driving while intoxicated. Even so, the court still held that the employer could not have anticipated such conduct recurring. Blankenship’s prior accidents, though occurring during his employment with Willis Shaw, bore no similarity at all to the complained-of accident. There is no basis for Walker’s contention that Willis Shaw either “authorized” or “should have anticipated” Blankenship’s conduct, even were the Court to assume that his conduct amounted to gross negligence. Walker cannot maintain his claim for punitive damages against Willis Shaw.

 

WHEREFORE, the Court being sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that the Defendant’s Motion for Partial Summary Judgment on the Issue of Punitive Damages be GRANTED.

CANAL INSURANCE COMPANY, Plaintiff,

v.

James M. BARKER, III, d/ba/ Barker & Son, et. al, Defendants.

 

Nov. 15, 2007.

 

MEMORANDUM OPINION

JAMES R. SPENCER, Chief Judge.

THIS MATTER comes before the Court on Plaintiff Canal Insurance Company’s (“Canal”); and Defendant James M. Barker III, d/b/a/ Barker & Son, (“Barker”), Defendant Denise Penn (“Penn”) and Defendant Houstonia Clymer (“Clymer”) (collectively, the “Defendants”) cross Motions for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c). For the reasons expressed below, Canal’s Motion for Judgment on the Pleadings is GRANTED.

 

I. BACKGROUND

 

On August 2, 2005, Defendant Justin Colvard (“Colvard”) was driving a tractor-trailer owned by Barker when he was involved in a motor vehicle accident on southbound Interstate 85 in Brunswick County, Virginia. Colvard had made a delivery to a location in Petersburg, Virginia and was expected to pick up property in Salisbury, North Carolina to transport to Elberton, Georgia on August 3, 2005. Thus, at the time of the accident, Colvard was “deadheading,” meaning that the trailer was empty. Penn and Clymer allege that Colvard was the cause of the accident and, therefore, Colvard and Barker, as Colvard’s employer, are responsible for the injuries they incurred in the accident.

 

Penn alleges that her damages to date exceed $300,000, which includes approximately $200,000 in medical bills. The $300,000 amount does not include any calculation of future medical treatment or for the loss of her eye.

 

Canal brought the instant action seeking a declaratory judgment as to the policy limits of a Basic Automobile Liability Policy (“Policy”) Canal issued to Barker. Canal asserts that the Policy is limited to $100,000, which is the face amount listed on the declaration page of the Policy. Conversely, the Defendants contend that a collective reading of the Policy, particularly its “Out of State Insurance” provision; Virginia’s minimum insurance requirements for interstate trucking businesses; and applicable federal regulations places the policy limits at $750,000.

 

In response to the Complaint, Clymer and Penn filed counterclaims against Canal in which they assert that Canal owes a duty to indemnify Barker and Colvard for at least $750,000 as to claims brought in connection with the accident. In the alternative, Clymer and Penn seek reformation of the insurance contract between Canal and Barker. Specifically, they assert “[t]o the extent the terms of the insurance contract … do not provide for the minimum amounts of insurance or other liability protection required by applicable law in connection with such business, Canal and Barker made a mutual mistake when they entered into an insurance contract that did not provide for such minimum amounts.”Amend. Counterclaim ¶ 15. Accordingly, Penn and Clymer seek reformation of the insurance contract to provide at least the minimum liability protection required by applicable law.

 

There are two primary issues before the Court: (1) whether the Out of State Insurance provision in the Policy increases the policy limits to $750,000 and (2) whether the contract between Canal and Barker may be reformed to increase the policy limits to $750,000.

 

II. DISCUSSION

 

A. Standard of Review

 

“After the pleadings are closed …, any party may move for judgment on the pleadings.”Fed. R. Civ. Pro. 12(c). In considering a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), the facts presented in the pleadings and the inferences drawn therefrom must be viewed in the light most favorable to the non-moving party. Edwards v. City of Goldsboro, 178 F.3d 231, 248 (4th Cir.1999). The purpose of a motion for judgment on the pleadings is to test the sufficiency of the Complaint. Id. at 243.

 

When considering a Rule 12(c) Motion, the Court accepts as true the facts set forth in the Complaint and the exhibits attached thereto because only the legal sufficiency of the Complaint are tested under a Rule 12(c) or 12(b)(6) motion, not the facts in support of the Complaint. Fed. R. Civ. Pro. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”); see also Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir.2000). The Court, however, is not required to accept as true conclusions or inferences from the Complaint which contradict the attached exhibits. See Fayetteville Investors v. Commercial Builders, Inc., 936 F .2d 1462, 1465 (4th Cir.1991) (“[I]n the event of conflict between the bare allegations of the complaint and any exhibit attached pursuant to Rule 10(c), … the exhibit prevails.”). Dismissal is inappropriate pursuant to Rule 12(c) unless it is clear that the non-moving party can prove no facts sufficient to support the claims for relief.Edwards, 178 F.3d at 244.

 

B. Whether the Out of State Insurance Provision in the Insurance Contract between Barker and Canal Increases the Policy Limits to $750,000

 

The parties agree that because the insurance contract between Canal and Barker was created in Georgia, Georgia law controls interpretation of the Policy. See Resource Bankshares v. St. Paul Mercury Ins. Co., 407 F.3d 631, 635 (4th Cir.2005) (finding that contract interpretation is governed by the state where the contract is made). In Georgia, insurance policies are a matter of contract “and the parties to an insurance policy are bound by its plain and unambiguous terms.”Cincinnati Ins. Co. v. Magnolia Estates, Inc . 286 Ga.App. 183, 185 (Ga.App.2007). Thus, where the terms of the policy are unambiguous, Georgia courts will enforce the policy as written. Id. Similarly, if the language of insurance policy is susceptible to more than one interpretation, Georgia law holds that the terms of the policy will be construed against the insurer.Id .

 

In the instant case, the “Out of State Insurance” provision  of the Policy is at issue. On its face, the provision increases the policy limits to the amount required by the law of another “state or province” for non-residents. Thus, if a state requires a non-resident motorcarrier to maintain a minimum amount of insurance, then the policy limits increase to the amount specified under that state’s law. The parties do not contest the meaning of the provision nor does this Court find the language of the provision ambiguous.

 

The “Out of State Insurance” provision states:

If, under the provisions of the motor vehicle financial responsibility law or the motor vehicle compulsory insurance law or any similar law of any state or province, a non-resident is required to maintain insurance with respect to the operation or use of a motor vehicle in such state or province and such insurance requirements are greater than the insurance provided by the policy, the limits of the company’s liability and kinds of coverage afforded by the policy shall be as set forth in such law, in lieu of the insurance otherwise provided by the policy, but only to the extent required by such law and only with respect to the operation or use of a motor vehicle in such state or province; provided that the insurance under this provision shall be reduced to the extent that there is other valid and collectible insurance under this or any other motor vehicle insurance policy. In no event shall any person be entitled to receive duplicate payments for the same elements of loss.

 

Accordingly, the central inquiry is whether the state law of Virginia  or, in the alternative, applicable federal regulations standing alone require non-resident motorcarriers, like Barker, to maintain a minimum amount of insurance when traveling on Virginia roads and highways. See, e.g., State Farm Mut. Auto. Ins. Co. v. McNeal, 491 F.Supp.2d 814, 823 (finding that “[b]y replacing coverage in the policy with that required by state law, State Farm has committed itself to protecting its insureds from changed liabilities brought on by the need to conform with various state laws;” thus, the appropriate inquiry is whether the insured became subject to the foreign state’s motor vehicle compulsory insurance, financial responsibility or similar law); O’ Shei v. Maryland Casualty Co., 1986 WL 1616,(W.D.N.Y.1986) (finding that the insurance company agreed to an expansion of coverage based on its Out of State Insurance endorsement; and therefore, the central question in the case was whether the insured was required by Ontario law to carry the minimum amount of uninsured motorist coverage prescribed by statute).

 

The Court examines the state law of Virginia because the accident occurred in Brunswick County, Virginia.

 

1. Whether Virginia state law required Barker, as a nonresident interstate motorcarrier, to carry a minimum amount of insurance?

 

The Defendants highlight VA Code Ann. § 46.2-2143(B) and (C) as the provisions which mandate interstate motorcarriers to maintain insurance equal to that required by federal law, rule or regulation. Section 46.2-2143(B) provides, in relevant part, that “[a]ll motorcarriers shall keep in force at all times insurance … in an amount required by this section,” and subsection (C) establishes that “minimum insurance for motorcarriers operating in interstate commerce shall equal the minimum required by federal law, rule, or regulation.”Citing federal regulations 49 C.F.R. §§ 387.7 and 387.9, the Defendants show that the required minimum level of financial responsibility for interstate motorcarriers is $750,000.

 

Conversely, Canal claims that a holistic reading of the Virginia statutory scheme regulating motorcarriers demonstrates that Virginia does not require nonresident motorcarriers to maintain insurance. Instead, Virginia only regulates motorcarriers who are registered in the state of Virginia and who also engage intrastate commerce. Virginia Code § 46.2-2101(2) exempts from Chapter 21 motorcarriers of property who transport “property between any point in this Commonwealth and any point outside this Commonwealth or between any points wholly within the limits of any city or town in this Commonwealth.”Id. In short, § 46.2-2101(2) prohibits the application of Chapter 21, which includes § 46.2-2143, to nonresident interstate motorcarriers and motorcarriers who operate strictly on a local level within a city or township.

 

Canal argues that its interpretation is supported by other sections of the Chapter 21. First, § 46.2-2102 states that “[n]o motorcarrier shall operate any motor vehicle for the transportation of property for compensation on any highway in this Commonwealth on an intrastate basis except in accordance with the provisions of this chapter.”(Emphasis added). Second, the title of § 46.2-2143, “Surety bonds, insurance, letter of credit or securities required prior to issuance of registration; amounts,” suggests that the provision is meant to apply to vehicles registered within the Commonwealth. Subsection A of § 46.2-2143 supports this reading of § 46.2-2143 because it outlines the prerequisites necessary for a motorcarrier to register a vehicle in the State.

 

This Court agrees with Canal. A fundamental canon of statutory construction is to start with the plain language. Discover Bank v.. Vaden, 396 F.3d 366, 369 (4th Cir.2005).“[W]here the statute’s language is plain, the sole function of the courts is to enforce it according to its terms.”Id. (quoting U.S. ex rel. Wilson v. Graham County Soil & Water Conservation Dist., 367 F.3d 245, 247 (4th Cir.2004)) (internal quotation omitted). Further, courts must “give effect to every provision and word in a statute and avoid any interpretation that may render statutory terms meaningless or superfluous.”Id. (quoting United States v. Ryan-Webster, 353 F.3d 353, 366 (4th Cir.2003)) (internal quotation omitted).

 

A comprehensive reading of the pertinent sections of Chapter 21 supports Canal’s interpretation of the § 46.2-2143. Particularly, § 46.2-2101(2), on its face, exempts the application of all the provisions within Chapter 21 including § 46.2-2143, from motorcarriers who engage in interstate commerce or who operate strictly on a local basis within a township or city; thereby, limiting its application only to those carriers who operate in intrastate commerce. This is further supported by § 46.2-2143 itself when read as a whole. The thrust of § 46.2-2143 is to outline the requirements a motorcarrier must fulfill prior to registering in Virginia. Subsection A lists four different ways a motorcarrier may certify to the Department that the vehicle is covered. Although § 46.2-2143(C) initially states that “[t]he minimum insurance for motorcarriers operating in interstate commerce shall equal the minimum required by federal law, rule, or regulation,” three sentences later within the same section it reads “[a]ny motorcarrier that meets the minimum federal financial responsibility requirements and also operates in intrastate commerce may submit, in lieu of a separate filing for its intrastate operation, proof of the minimum federal limits, provided that (i) both interstate and intrastate operations are insured, (ii) the public liability filed is at least $750,000, and (iii) any cargo insurance requirements of this section have been met.”When read as a whole, § 46.2-2143 is clearly outlining financial responsibility requirements for motorcarriers who are registered in the state of Virginia. Therefore, when § 46.2-2143 is considered in conjunction with the other provisions in the chapter, specifically the exemption in § 46.2-2101(2), it is evident that nonresident motorscarriers, like Barker, who are engaged in interstate commerce and whose vehicles are principally garaged and registered in another state are exempt.

 

Subsections (B) and (C) of Va.Code Ann. § 46.2-2143 state, in their entirety that:

(B) All motorcarriers shall keep in force at all times insurance, a bond or bonds, in an amount required by this section.

(C) The minimum public liability financial responsibility requirements for motorcarriers operating in intrastate commerce shall be $750,000. The minimum insurance for motorcarriers operating in interstate commerce shall equal the minimum required by federal law, rule, or regulation. The minimum cargo insurance required for motorcarriers operating in intrastate commerce shall be $50,000. Motorcarriers engaged exclusively in the transportation of bulk commodities shall not be required to file any cargo insurance, bond or bonds for cargo liability. Any motorcarrier that meets the minimum federal financial responsibility requirements and also operates in intrastate commerce may submit, in lieu of a separate filing for its intrastate operation, proof of the minimum federal limits, provided that (i) both interstate and intrastate operations are insured, (ii) the public liability filed is at least $750,000, and (iii) any cargo insurance requirements of this section have been met.

 

The Defendants attempt to respond to Canal’s argument by pointing out that § 46.2-2143(B) requires “all motorcarriers ” to keep in force “at all times insurance, a bond or bonds” and § 46.2-2141 mandates the application of the Article 2 Insurance Requirements to “all motorcarriers as defined under this chapter.” (Emphasis added). Section 46.2-2100 defines “motorcarrier” as “any person [including Barker] who undertakes whether directly or by a lease, to transport property, including household goods, as defined by this chapter, for compensation over the highways of the Commonwealth.” Nonetheless, despite the broad definition of the term motorcarrier, the Defendants can not circumvent the fact that § 46.2-2101(2) exempts from the entire chapter “transportation of property between any point in this Commonwealth and any point outside this Commonwealth.”To apply the law as the Defendants argue would render § 46.2-2101(2) meaningless. Thus, this Court concludes that Virginia does not require interstate motorcarriers who are registered in another state to maintain a minimum amount of insurance.

 

2. Whether the federal financial responsibility regulations standing alone require Barker to maintain $750, 000 in insurance?

 

Federal regulations, specifically 49 C.F.R. § § 387.7 and 387.9, clearly require motorcarriers to obtain and have in effect a minimum level of financial responsibility in the amount of $750,000. The requirement applies to “for-hire motorcarriers operating motor vehicles transporting property in interstate or foreign commerce.”49 C.F.R. § 387.3. As Colvard, using Barker’s vehicle, had delivered property to Petersburg and was in the process of picking up cargo to deliver it from North Carolina to Georgia, Barker clearly falls within the purview of § 387.3; and is, therefore, required to maintain a minimum level of financial responsibility in the amount of $750,000. The Defendants contend that because the federal regulations require Barker to maintain a financial responsibility of $750,000, this is sufficient to trigger the Out of State Insurance provision. This Court is not persuaded.

 

Although Barker was required to show a financial responsibility of $750,000, Barker may satisfy his responsibility through several means, one of which includes insurance. In other words, while Barker may opt to meet his proof of financial responsibility by purchasing insurance, the federal regulations do not require Barker to do so. Additionally, even if federal regulations required Barker to carry insurance, which they do not, the Out of State Insurance provision would not be triggered by federal law standing alone.

 

As a general principle, this Court recognizes that federal financial responsibility provisions regulate motorcarriers and not insurers. “[T]he purpose of the financial responsibility provisions of the MotorCarrier Act of 1980 is … to assure the general public that a motorcarrier maintains an adequate level of financial responsibility sufficient to satisfy claims covering public liability.”McGirt v. Gulf Ins. Co., 207 Fed. Appx. 305, 308 (citations omitted). It is the motorcarrier’s responsibility to ensure that it has complied with the financial responsibility regulations, not the insurer. Illinois Central R. Co. v. Dupont, 326 F.3d 665, 668-69 (5th Cir.2003) (concluding that the regulations requiring proof of minimum levels of responsibility were directed at, and the responsibility of, the motorcarrier and, therefore, rejecting the plaintiff’s argument that because the regulations required the motorcarrier to have the MCS-90 endorsement, the insurance policy should be read to automatically include the endorsement); Brewer v. Maynard, 2007 WL 2119250, * 1,(S.D.W.Va.2007) (holding that the motorcarrier regulations place the burden of compliance on the motorcarrier not the insurer where the plaintiff was attempting to make a claim for “negligent under insurance”).

 

49 C.F.R. § 387.7(d) permits a motorcarrier to meet its financial responsibility in one of three ways: (1) obtaining liability insurance, including an MCS-90 endorsement; (2) obtaining a surety bond; or (3) obtaining written authorization from the Federal MotorCarrier Safety Administration to self-insure. When a motorcarrier opts not to use an insurance policy to meet its financial responsibility requirements, then the regulations do not require the carrier to maintain a minimum of $750,000 in insurance. See Bray v. Insurance Co. of State of Pennsylvania, 917 F.2d 130, 132 (4th Cir.1990) (explaining that a truckingcompany is not required to carry insurance because it “may satisfy proof of financial responsibility by electing to be self-insured and filing an approved surety bond or other security … [but][i] f the trucker does not elect to be self-insured, it must carry insurance”).

 

In the present case, the face amount of the Policy is $100,000. Further, the Policy does not contain a MCS-90 endorsement. Thus, it is evident that this Policy was not being used to satisfy Barker’s proof of financial responsibility requirement in the amount of $750,000. As such, the federal regulations requiring a minimum financial responsibility level of $750,000 do not apply to the Policy issued by Canal.

 

Even if the federal regulations arguendo did require Barker to maintain $750,000 in insurance, the Out of State Insurance contract provision is not triggered by federal law standing alone. As the parties have agreed, Georgia law governs the interpretation of the insurance contract. As discussed previously, where the terms of the policy are unambiguous, Georgia courts will enforce the policy as written. Cincinnati Ins. Co. v. Magnolia Estates, Inc. 286 Ga.App. 183, 185 (Ga.App.2007). If, however, the language of the insurance policy is ambiguous or susceptible to more than one reasonable interpretation, Georgia law holds that the terms of the policy will be construed against the insurer. Id.

 

In the case at bar, the Out of State Insurance provision is not ambiguous. It clearly states that if the laws of “any state or province” requires “a non-resident … to maintain insurance with respect to use of a motor vehicle in such state or province,” then the policy limits will increase. From the title of the provision to its stated terms, the provision is aimed at protecting insureds from increased insurance requirements imposed by state law on nonresidents, not federal law. If the Out of State Insurance provision is read to increase the policy provision to $750,000 based strictly on the application of federal law, then the Policy would be worth $750,000 everywhere in the United States and the $100,000 face amount would serve no purpose.

 

Accordingly, this Court finds that the applicable policy limits are $100,000 because (1) federal regulations do not require Barker to maintain $750,000 in insurance and (2) even if they did, the Out of State Insurance provision in the Policy is not triggered strictly by the application of federal law. Because this Court finds that neither Virginia nor applicable federal law requires Barker to maintain insurance in the amount of $750,000, Penn’s and Clymer’s Counterclaims asserting that Canal has a duty to indemnify Barker in the amount of $750,000 also necessarily fails. Thus, the only remaining issue with respect to the Counterclaims is whether the insurance contract between Canal and Barker may be reformed.

 

C. Whether the Contract between Canal and Barker may be Reformed to Increase the Policy Limits to $750,000.

 

In their Counterclaims, Penn and Clymer seek reformation of the insurance contract between Barker and Canal on the grounds of mutual mistake. Penn and Clymer assert that the insurance contract should be reformed to reflect the minimum amounts of insurance or other liability protection required by applicable law. Canal counters that the Counterclaims filed by Penn and Clymer fail as a matter of law because (1) Penn and Clymer lack standing to seek reformation and (2) there was no mistake of law or fact. Relying on Googe v. Florida Intern. Indem. Co., 262 Ga. 546 (Ga.1992) and Richards v. State Farm Mut. Auto. Ins. Co., 252 Ga.App. 45 (Ga.App.2001), Penn and Clymer argue that the Supreme Court of Georgia has recognized that where liability insurance coverage is legislatively mandated, then a third party beneficiary, i.e. victims of automobile accidents, may be permitted to bring an action for equitable reformation. Richards, 252 Ga.App. at 46 (citing Googe, 262 Ga. 546, 548(1)).

 

This Court, however, finds that it does not need to determine whether Georgia confers third party beneficiary status to victims of automobile accidents. Instead, the rules promulgated by the Georgia Public Service Commission (“PSC”), as authorized by O.C.G.A. §§ 46-7-12 and 46-7-12.1, show that motorcarriers who elect to obtain insurance or a bond, as opposed to obtaining permission from the Georgia Public Service Commission to self-insure, must maintain a minimum bond or insurance in the amount of $100,000. PSC § 7-2.1.

 

The Policy at issue here complies with the minimum amounts under Georgia law. Thus, even if Penn and Clymer were permitted to reform the contract to comply with applicable law, the limits of the Policy would still be $100,000. As such, Penn’s and Clymer’s Counterclaims fail as a matter of law.

 

Because this Court has previously decided that federal regulations do not require Barker to maintain insurance, there is no need to re-examine that issue here.

 

III. CONCLUSION

 

For the reasons stated above, Canal’s Motion for Judgment on the Pleadings is hereby GRANTED. An appropriate Final Order shall issue.