In Waters v. Miller, ____ F.3d ____ (11th Cir. April 15, 2009), Waters was rear-ended by Miller’s tractor-trailer on November 29, 2005.  At the time of the accident, Miller was hauling cars from Florida to Georgia.  Miller carried commercial vehicle insurance with Progressive Express Insurance Company.  Progressive denied the claim asserting that the policy period was September 11, 2004 – September 11, 2005, and that the insured did not pay the premium to extend the policy past its expiration date of September 11, 2005.   

Waters filed a declaratory judgment action against Progressive, arguing that 1) pursuant to Florida Statue Section 320.02(5)(e), Progressive’s policy remained in effect until Progressive notified the Florida Department of Highway Safety and Motor Vehicles that the policy had been canceled; and 2) Progressive knew or should have known that Miller was engaged in interstate trucking and that as a result, an MCS-90 endorsement should be read into the policy. 

Section 320.02(5)(e) states that a policy insuring commercial motor vehicles "may not be canceled on less than 30 days written notice by the insurer to the [FDHSMV]."  However, in this case, the 11th Circuit held that this statute does not apply when a policy expires as opposed to when a policy is canceled. 

Under the Motor Carrier Act of 1980, 49 U.S.C. Section 10101 et seq., and the regulations promulgated thereunder, certain interstate motor carriers must obtain an insurance policy containing an MCS-90 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[.]"  Coverage from policies containing an MCS-90 endorsement remains in effect until the insurance company gives 30 days’ written notice to the FMCSA.  See, 49 C.F.R. Sections 387.15, 387.313(d). 

The Progressive policy at issue did not contain an MCS-90 endorsement, however, Miller argued that one should be incorporated into the Progressive policy because Progressive knew or should have known that Waters was engaged in interstate travel.  The 11th Circuit held that Waters did not present sufficient evidence to support a conclusion that Progressive knew or should have known Miller was driving the tractor-trailer interstate. 

Importantly, the 11th Circuit specifically held that because Waters failed to provide sufficient evidence that Progressive knew or should have known that Miller was engaged in interstate trucking the Court found it

unnecessary for us to reach the issue of whether the endorsement can be read into a policy that does not contain it, and we expressly decline to do so." 

In Footnote 3, the Court notes that "[s]ome court have incorporated the endorsement into policies as a matter of law."