Insurance covers in wrongful death truck crash, COA rules

An endorsement to an insurance policy providing coverage for vehicles not specifically listed in the policy applied to a wrongful death dispute involving a trucker, the Indiana Court of Appeals has ruled.

The dispute involved the application of an MCS-90 endorsement in B&T Bulk’s policy with Progressive Southeastern Insurance Company. Mandated by the federal Motor Carrier Act of 1980, MCS-90 endorsements provide coverage for negligence claims resulting from the use of a commercial vehicle even if the negligently driven vehicle is not specifically listed in the insurance policy.

In December 2017, B&T employee Bruce Brown was dispatched to pick up and transport a load of cement from Lehigh Cement in Logansport to Kuert Concrete in South Bend. Brown’s truck was owned by B&T but was not listed on its policy with Progressive.

Before he reached Logansport, Brown crossed a median and collided with a car driven by Dona Johnson, who was killed. B&T then became subject to a Federal Motor Carrier Safety Administration inspection, while Dona’s husband, Robin, filed a wrong-death complaint against Brown and B&T.

B&T asked Progressive to defend and indemnify it, but Progressive sought declaratory judgment that it had no duty to defend or indemnify because the truck was not listed in the policy. The insurer also argued the MCS-90 endorsement did not apply.

The Carroll Circuit Court ultimately ruled that Progressive had no duty to defend or indemnify B&T, but the endorsement did apply. Progressive appealed that ruling, arguing Brown was on an intrastate, rather than interstate, trip at the time of the accident.

But pointing to Sandberg Trucking, Inc. v. Johnson, 76 N.E.3d 178 (Ind. Ct. App. 2017), the Indiana Court of Appeals held that “in order to write policies in Indiana, Progressive had to comply with (Indiana Code § 8-2.1-24-18(a)’s) requirement that minimum levels of financial responsibility in 49 C.F.R. part 387 apply to intrastate transportation.”

Progressive also argued the endorsement didn’t apply because B&T wasn’t actually transporting property at the time of the accident, as Brown had not yet picked up the load of cement. It argued Titan Indemnity Co. v. Gaitan Enterprises, Inc., 237 F. Supp. 3d 343 (D. Md. 2017), supported its argument, but the COA found the opposite.

“Although Brown was not in line to receive the cargo he was to haul, he was on his way from B&T in Mishawaka to Lehigh in Logansport to pick it up,” Judge Nancy Vaidik wrote for the unanimous appellate panel. “Once he received the load, Brown intended to transport it to Kuert in South Bend.

“Travel from a trucking facility to a customer location to pick up a load is a ‘service[] related to’ the transportation of property,” Vaidik wrote. “Accordingly, B&T was engaged in the transportation of property at the time of the accident even though its trailer was empty.

“We affirm the trial court’s summary-judgment ruling that the MCS-90 endorsement applies.”

The case is Progressive Southeastern Insurance Company v. B&T Bulk LLC, Bruce A. Brown, Robin S. Johnson, as Personal Representative of the Estate of Dona S. Johnson, and Robin S. Johnson, Individually, and State Farm Mutual Automobile Insurance Company, 20A-CT-1765.

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