Aequicap Insurance Co. v. Canal Insurance Co., 303 Ga. App. 508

693 S.E.2d 863 (Ga. Ct. App. 2010) · Court of Appeals of Georgia · March 24, 2010 · No. A09A2382

Summary

The Georgia Court of Appeals held that an MCS-90 endorsement attached to Aequicap Insurance Company's policy required Aequicap to pay any final judgment arising from a public-injury claim caused by the negligent operation of a leased truck. The court concluded that the endorsement applied despite policy exclusions, lack of vehicle designation, and conflicting lease provisions, and that the driver was the statutory employee of the authorized motor carrier. The court affirmed the trial court's grant of partial summary judgment.

Holdings

  1. The MCS-90 endorsement applied to O'Berry's claim and required Aequicap to pay, within the policy limits, any final judgment recovered by O'Berry arising from the negligent operation of the truck.
  2. Because CDS Transport was required to assume exclusive possession, control, and use of the leased truck and responsibility for its operation, Floyd was CDS Transport's statutory employee for purposes of the regulations and CDS Transport was vicariously liable as a matter of law for Floyd's negligence.
  3. Conflicting policy and lease provisions could not limit Aequicap's liability to an injured member of the public under the MCS-90 endorsement.
  4. The appellate court could not consider Aequicap's contention that CDS Transport was obligated to reimburse it for amounts paid under the MCS-90 endorsement because Aequicap had not raised the issue by cross-claim and motion for summary judgment or obtained a ruling below.

Questions Presented

  1. Whether the MCS-90 endorsement attached to Aequicap's policy required Aequicap to pay any final judgment recovered by O'Berry for injuries caused by Floyd's negligent operation of the leased truck.
  2. Whether Floyd was CDS Transport's statutory employee and CDS Transport was vicariously liable for Floyd's negligence under the federal motor-carrier leasing regulations.
  3. Whether conflicting terms in Aequicap's insurance policy and the lease agreement could limit or preclude enforcement of the MCS-90 endorsement.
  4. Whether Aequicap could raise on appeal CDS Transport's obligation to reimburse Aequicap for payments made under the MCS-90 endorsement when the issue was not raised and ruled on below.

Disposition

affirmed

Cases Cited (16)

  • Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459(1), 486 S.E.2d 684 (1997)(followed)
  • Empire Fire, etc. Ins. Co. v. Guaranty Nat. Ins. Co., 868 F.2d 357, 362-363(III)(A) (10th Cir. 1989)(relied upon)
  • Price v. Westmoreland, 727 F.2d 494, 496-497(II) (5th Cir. 1984)(followed)
  • Armstrong v. United States Fire Ins. Co., 606 F. Supp. 2d 794, 808-809(VI)(C)(1) (E.D. Tenn. 2009)(relied upon)
  • Empire Fire, etc. Ins. Co. v. J. Transport, Inc., 880 F.2d 1291, 1298 (11th Cir. 1989)(followed)
  • Hot Shot Express v. Assicurazioni Generali, S.P.A., 252 Ga. App. 372, 373-374, 556 S.E.2d 475 (2001)(followed)
  • Nationwide Mut. Ins. Co. v. Holbrooks, 187 Ga. App. 706, 712(3), 371 S.E.2d 252 (1988)(followed)
  • Simmons v. King, 478 F.2d 857, 866-867 (5th Cir. 1973)(followed)
  • Kolencik v. Progressive Preferred Ins. Co., Civil Action No. 1:04-CV-3507-JOF, 2006 WL 738715, at *4-5, 2006 U.S. Dist. LEXIS 24855, at *14-17 (II)(A) (N.D. Ga. Mar. 17, 2006)(relied upon)
  • T.H.E. Ins. Co. v. Larsen Intermodal Svcs., 242 F.3d 667, 673(II)(A)(1) (5th Cir. 2001)(followed)

Showing top 10 of 16.

Cited In (0)

No citing cases on record yet.

Download CaseDownload Case DataDownload Case and DataDownload AI Instructions

Court Document

Open PDF
Loading document…

More from Georgia Court Of Appeals