GEORGIA: INSURER’S MCS-90 ENDORSEMENT IS CANCELLED WHEN REPLACED BY ANOTHER INSURER’S MCS-90 ENDORSEMENT

SUMMARY OF AMICUS BRIEF FILED 8/6/2025

Appeal from the United States District Court for the Northern District of Georgia, Gainesville Division, Richard W. Story, United States District Judge.

TIDA filed an amicus brief in the United States Court of Appeals for the Eleventh Circuit in the case of Cagle v. National Indemnity Company of the South, Case No. 25-11778.  The brief is in support of TIDA defense counsel member Mark Barber of Baker Donelson Bearman Caldwell & Berkowitz and his client National Indemnity Company of the South (“NICO”), whose MCS-90 endorsement for a motor carrier was improperly triggered for coverage. 

The case arose out of a tractor-trailer/motorist accident on July 16, 2019 in Georgia, injuring seriously the plaintiff Mr. Cagle.  Even though the motor carrier’s MCS-90 endorsement issued by one insurer (Old Republic Ins. Co.) did pay out the $750,000 limits of its MCS-90 endorsement to Mr. Cagle, the District Court also found that NICO’s MCS-90 endorsement for the motor carrier was also triggered.  NICO argued in its District Court briefs and in its recent Eleventh Circuit brief, inter alia, that there can only be one motor carrier of record for purposes of coverage under a MCS-90 endorsement, that an MCS-90 endorsement will apply only if the motor carrier to which the endorsement was issued was the for-hire motor carrier whose USDOT authority was being used at the time of the accident, and that only one motor carrier authority can be used at any one time.  

To compliment that argument, the TIDA amicus brief approached the issue from another angle – termination by replacement.  The brief cut-and-pasted a screen shot from the USDOT web site of the motor carrier showing that NICO’s BMC91X filing (for MCS-90 surety obligations) was replaced effective June 14, 2019 by a BMC91X filing made by Old Republic – one month before the accident.  Federal motor carrier regulation 49 C.F.R. § 387.313T(e) states: “Termination by replacement. Certificates of insurance or surety bonds which have been accepted by the FMCSA under these rules may be replaced by other certificates of insurance, surety bonds or other security, and the liability of the retiring insurer or surety under such certificates of insurance or surety bonds shall be considered as having terminated as of the effective date of the replacement certificate of insurances, surety bond or other security, provided the said replacement certificate, bond or other security is acceptable to the FMCSA under the rules and regulations in this part.” (emphasis added).  The District Court failed to enforce this provision and committed clear error by finding that NICO’s MCS-90 endorsement had not been properly replaced by Old Republic’s.  This argument is supported by Northland Ins. Co. v. New Hampshire Ins. Co., 63 F. Supp. 2d 128, 134 (D.N.H. 1999) (“An MCS 90 Endorsement also will be canceled automatically notwithstanding the insurer's failure to comply with the endorsement's cancellation requirements if the policyholder purchases ‘replacement’ insurance.”).  TIDA member Michael D. Hostetter of Nall & Miller, LLP in Atlanta, Georgia filed the amicus brief on behalf of TIDA. 

download the amicus brief