Ask Tommy Sample2022-08-05T12:03:47-04:00

ASK TOMMY

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ANSWER:

From the Kingpin: 

Debbie, clearly the MCS 90 is an endorsement to the policy, not a filing. As well, the endorsement states the requirement to be provided with the policy if requested during a DOT audit of the insured. The “filing” verbiage on the MCS 90 endorsement is informational and exists because the endorsement cancelation provision requires the applicable MC filing be canceled with the policy. This is the information to which you are referring.  

Thomas Ruke, TRS
Founder and Education Director -MCIEF 

QUESTION:
“I received email from an insurance company because a unit that was not on a policy was inspected under the insured’s DOT#. It was a unit that the leasing company gave them to use while the unit that they had a long-term lease on was in for repairs. The agent told the underwriter that questioned why the unit was not on the policy that it was a “replacement” unit for a long-term lease while the unit on the policy was in for repairs. The underwriter said that it did not qualify as a temporary substitute because it was not “owned” by the insured.”

ANSWER:

Policy Wording

3. Any “auto” you do not own while used with the permission of its owner as a temporary substitute for a covered “auto” you own that is out of service because of its:

  • a. Breakdown;
  • b. Repair;
  • c. Servicing;
  • d. “Loss”; or
  • e. Destruction

Symbol 7/67

    Specifically Described “Autos”

  • Only those autos described in Item Three of the Declarations

Item Three
“Schedule of covered autos you own”
So, only the autos you can list are ones that are owned by the insured. If not owned, an endorsement must be added to reclassify a non-owned auto to an owned auto.

  • Must be owned to be listed in Item Three –If not owned, need endorsement
  • CA9916 – Owner-operator/independent contractor
  • CA2001 – Leasing companies
  • CA9947 – Owned personally by owner of insured

If an endorsement was added, then the temporary substitute unit would be, by definition, an owned covered auto.

An additional consideration, this was a leased auto so the endorsement needed would be CA2001. It not only reclassifies the auto to be an owned auto but addresses in even more detail coverage concerning the leasing company providing an auto to the lessee (insured) to use when the leasing company (lessor) is working on the unit described in Item Three.

Policy Wording

  • E. Additional Definition
  • As used in this endorsement:

“Leased auto” means an “auto” leased or rented to you, including any substitute, replacement or extra “auto” needed to meet seasonal or other needs, under a leasing or rental agreement that requires you to provide direct primary insurance for the lessor.
The bottom line is that if proper endorsements are added, then the temporary substitute unit would be a “covered auto” even if not listed.

“I have a unique situation and I would like your opinion on a new risk. They are listed in CAB and SAFER with a DBA name. FMCSA does not list them with a DBA name. The insured says that they use the DBA because their customers know them by that name, and they have the DBA printed on the sides of their trucks.”

Response:

First, the DBA is not a legal entity. It does not expand or limit areas of exposure. The motor carrier’s name is the legal entity — Ruke Transportation LLC DBA The Pickle Man. The legal entity is Ruke Transportation LLC. The DBA Pickle Man has no effect on coverage and no liability exposure.

The insureds in the coverage form should be/needs to be the legal entity whose assets are exposed if a crash happens. The DBA has no effect on that because the DBA is not a legal entity nor owns assets.

When providing insurance you also need to remember that if the legal entity has a DBA that has not been considered, there could be additional exposure. An example, Ruke Transportation LLC, the legal entity, has another DBA, Ruke’s Garage. Even if the named insured is Ruke Transportation LLC DBA The Pickle Man, the coverage would extend to Ruke Transportation LLC DBA Ruke’s Garage. Again, the DBA has no standing in court and is not a consideration in coverage.

As to the different name in the federal database, remember it is the DOT# database where the DBA showed up and is based in Washington, DC. The MC# in Licensing & Insurance did not reflect the DBA which is hosted by Volpe and housed in Cambridge, MA. The different names in the databases are an example of why in over 20 years, the government has not merged the database as required by the ICC Termination Act of 1996 into the Uniform Registration System.

One last observation – If the Licensing & Insurance (MC#) database has the name the MC# is issued to Ruke Transportation LLC DBA The Pickle Man, the 91X filing would have to have the name listed and reflected the same as the MC#. The 91X filing would have to have been made in Ruke Transportation LLC DBA The Pickle Man, but the named insured in the policy should be Ruke Transportation LLC (would not need to add the DBA).

Question:
An agent asked if the “broker” had to have a DOT number and, if so, do they have to update their MCS-150 each year. When we receive questions we go to the expert. The following answer is from foundation friend and contributor Bridgette M. Blitch, Esq. of Taylor & Associates, Attorneys at Law, P.L.

Answer:
FMCSA automatically issues a USDOT number to brokers upon application for authority. Brokers are not required to perform biennial updates through the FMCSA. If the company is operating only as a broker, there is obviously no driver, vehicle information or mileage to update. The MCS-150 is used only to update a USDOT number. Brokers complete MCSA-5889 form to update their address or phone number. This can be done online and only as needed.

The Unified Carrier Registration (“UCR”) applies to all interstate motor carriers and brokers, even those based in Florida and other non-UCR jurisdictions. 49 U.S.C. 14505a. Each state that adopts the UCR is responsible for enforcing its provisions. If, for example, Mississippi is electing to enforce the UCR registration and enforcement requirement against a broker, it may elect to do so because the broker is registered with the FMCSA. Penalties could be assessed against the broker if loads are being transported and or arranged through Mississippi. This is because Mississippi and other UCR states have jurisdiction to enforce UCR registration if the broker is found to be arranging the transportation of goods in their respective states. If the broker arranges transportation through UCR jurisdictions, best practice would be to file with the UCR system to avoid possible fines.

ANSWER:
The Safety and Fitness Electronic Records (SAFER) system has links to other websites.

The Federal Motor Carrier Safety Administration (FMCSA) is the federal agency that oversees transportation in the United Sates including managing and providing the information in SAFER.

The information reflected in SAFER’s links come from the information provided to and/or by the FMCSA. The three links that we typically review when providing insurance are the: Company Snapshot, Analysis and Information (A&I) and Licensing and Insurance.

The first part of the Snapshot is information the motor carrier provides to FMCSA on their MCS150 update or if a new application for a DOT# the MCSA-1. A few items like operating status and MCS150 form date are from the FMCSA. The second part is all from FMCSA and includes information from inspection results provided by enforcement officers.

Analysis and Information (A&I) links include the information from the Snapshot but are more in-depth and have additional information. Any motor carrier with a DOT#, both interstate motor carriers (federal number) or intrastate motor carriers if in a state that requires a federal DOT# (most do), will have information in A&I. Information from the MCS150/MCSA-1 shows their profile –Results from roadside inspections provided with the 5 BASIC’s or CSA/SMS from the enforcement officer when the unit was inspected or if a visit at the insured’s office, the results of any concerns from lack of paperwork to other findings. Again, all holders of DOT#’s have information provided to FMCSA by the insured or enforcement officer. The inspection information is the CSA and SMS reflecting on-road activities. CAB and Carrier Software reformat the information into a more useable format but the information comes from the FMCSA sources.

The Licensing and Insurance links have information from the OP1 to haul processed goods in interstate commerce. This is an additional requirement after obtaining a DOT#. The motor carrier will be issued a second number (MC#) that also will have insurance requirements and information about insurance.

The bottom line – Two applications (MCS150 – DOT#). The motor carrier’s name used for the DOT# could be slightly different (typo or shortened – Truck, Incorporated to Truck, Inc.). Then the name used for the MC# (OP1). This is why you might have different names and/or addresses. This will not be a concern with new DOT#’s and MC#’s because the MCSA-1 application includes requests for both a DOT# and MC# so the names will be the same.

Motor carriers with only a DOT# will not have any information in Licensing and Insurance but will have if applied for after 12/16 in A&I. The MC# will go away when (and if) the URS is ever completed.

QUESTION:
Can you explain the coverage on form CA9948 in reference to a motor carrier. We have had some discussions here at our agency as to if the CA9948 would give all the coverages needed rather than doing a Transportation Pollution stand-alone policy. What are the differences, if any? And what does the form mean by A.1. Paragraph a. of the Pollution Exclusion applies only to liability assumed under a contract or agreement. Please explain what they mean by “assumed under a contract or agreement”.

ANSWER:
An interesting question and one that is answered often that would be useful to all. As to A.1., paragraph a. of the CA9948 endorsement, the endorsement says that the coverage provided by CA9948 applies except for liability assumed under a contact or agreement. In other words, if the crash had a pollution spill caused by the insured’s negligence, the CA9948 endorsement would provide coverage. But if the pollution event was caused by the shipper loading the load and the load escaped because of the negligence of the shipper loading the load, there would not be coverage for the shipper even if the insured held the shipper harmless (in an insured contract). The endorsement provides coverage to the insured but not to any other negligent party even if the insured agreed to under a written agreement to hold them harmless.

To address the possible need of the Transportation Pollution stand-alone policy would be if the insured held someone harmless for their negligence, the CA9948 would not consider the agreement an insured contract but the stand alone policy might. I say might because not all Transportation Pollution stand-alone policies are uniform.

One other consideration, even if the individual who is a motor carrier holds a customer (shipper) harmless if the contract is subject to state laws where the law has an anti-indemnification provision (42 states have such laws – all but Mississippi, Ohio, Delaware, New York, New Jersey, Rhode Island, Vermont and New Hampshire) the contract cannot be enforceable because of state laws.

Other possible needs for a stand-alone Transportation Pollution policy (remember policy wording could be different) if the insured has other responsibilities beyond transportation like loading and unloading with a mechanical device not attached to the covered auto, flatbed operation hauling 55 gallon drums of oil, motor carrier is required to unload the drums and uses a forklift and while unloading the forklift turns over and drum hits the ground and opens and oil escapes. An AL policy with CA9948 would not address because of Exclusions 7 and 8 – GL would not address because insured brought the oil to the accident location, so stand-alone policy could address loss. If insured has any responsibility beyond hauling the load, has any contractual responsibility and is under a state law without anti-indemnification provision then the stand-alone policy would be needed.

Lastly, of course if the AL carrier would not provide the CA9948 endorsement, the stand-alone policy would be needed.

Is it worth looking into a stand-alone pollution policy? Probably – Would it provide protection that CA9948 does not – Maybe, but depending on the wording of the stand-alone policy, the availability and or cost of the CA9948 endorsement or if the insured does more than provide transportation.

Your Content Goes HereQUESTION:
I have a trucking industry question regarding the MCS90 endorsement. Most of the time we only see this endorsement when a carrier has and MC# and a BMC91x has to be filed. However, lately I have seen DOT inspectors requiring that and intrastate carrier hauling an exempt commodity have a MCS90 endorsement. The current issue that I have is with a log hauler in the state who is Intrastate only and only has a DOT#. The inspector is threatening a $10,000 fine per day that my insured does not have the MCS90 in office. We have insured this company for 5 years now and have never had to request and MCS90 from the insurance company. Is the inspector correct that they have to have this MCS90. Is there some type of guideline that you can give me or direct me to so that I can better understand when the MCS 90 is required? Any guidance you could give would be greatly appreciated.

ANSWER:
First, the DOT officer is understating the fine. It is $11,000 per day.

Second, it depends on where the logs are going. If the insured owns the logs and is hauling the logs in the state, that were harvested in state and are being taken to a mill in the state then I do not think the MCS90 is required. If the logs are harvested in the state and taken to a rail yard to be delivered outside of the state, then the MCS90 would be required.

QUESTION:
“How do PSP scores factor into Safer and CSA – As an agent, do we have access to pull PSP scores on individual drivers?”

ANSWER:
Safersys.org provides a “link” to A&I/CSA/SMS – To access this information in CSA. There is no effect on the SAFER website – It is just a “link”

PSP stands for Pre-Employment Screening Program. It has been in effect for three years. You can access information about PSP through the A&I webpage – Top banner – Then link is on the left – “Carrier/Driver Safety” – Drop down – Pre-Employment Screening Program (PSP) will provide the details of the program

What is in the information?

As we went over in the webinar, there are two databases – SMS (Carrier Safety Measurement System) – This is the foundation of the BASIC information we went over and is accessible for the public view – It reflects the on-the-road activities of the motor carrier and DOT enforcement officers – Mainly the results of the inspections

The second database is the DSMS (Driver Safety Measurement System) – When a DOT officer performs an inspection that reports information concerning the motor carrier, it is reflected in CSMS. This same information is also reported on DSMS. This database is only currently accessible by a DOT officer. The PSP report is based on this database

PSP is only available to a potential employer of a CDL driver and can only be available to the potential employer for employment purposes. Based on our expert, Dale Reagan, after the hiring decision is made, the report must be destroyed. It is a part of the all-encompassing federal Fair Credit Reporting Act. The report reflects the past three years of roadside activities of the driver/potential employee. It also reflects whose DOT# the truck was operating on (past employer).

The PSP will also reflect different information than a MVR.

Once the driver has been hired, the motor carrier who is using the driver can keep track of their drivers’ activities by accessing their own information in SMS and by using their PIN#. The report will reflect the drivers’ names.

As a part of a motor carrier’s driver hiring “standards”, the PSP report must be considered. The availability of the PSP report to the motor carrier has recently been made more accessible and through HireRight a motor carrier can access a driver’s PSP and MVR. There are other providers that can do that as well. MCIEF/TRS has a special arrangement with HireRight for retail agents to provide their services to small motor carriers at a reduced price.

PSP issues will be a discussed at the Advanced Underwriting Seminar being held September 16-17, 2013 in Orlando and a session on PSP’s, MVR’s and Other Hiring Issues will be presented by Dale Reagan of TenStreet at the MCIEF/TRS Annual Conference being held in Orlando October 23-24, 2013. Registration information for these two programs is available at our website, transportationriskspecialist.com.

Question:

We insure a meat distributor that is using stationary refrigerated semi-trailers as temporary freezers while permanent freezers are being constructed during the next 12-18 months. The semi-trailers will be ONLY sitting at the construction locations and will NOT be used on the road or leave the construction location. The producer is worried about the auto exclusion on the CG 00 01. We understand these trailers are being deleted from their commercial auto policy. The insured has CG 00 01 currently, but worry the auto exclusion in the CGL form eliminates coverage and the carrier on the GL has expressed that they do not believe there to be coverage under the CGL form for these trailers.

Answer:

The ISO GENERAL LIABILITY COVERAGE FORM CG 00 01would consider these “storage trailers” mobile equipment if the trailers are not licensed for road and used at the construction location. Remove the tags for coverage!

Question:

Does the person who performs the physical inspection on the truck have to be certified to perform inspections?

Answer:
DOT inspections are only performed by officers. For the driver only, Level III – The inspections can be done by any officer – State or local although local officers do not normally do them.

A Level II or I can only be performed by a DOT trained officer. They could be state officers who have been trained or federal DOT officers.

The funds raised by the UCR system provide the funds to the states to pay for officer training and compensation. States have a “quota” they must achieve to retain their funding.

I have found these officers (mostly state employees that are DOT trained) to be well trained, knowledgeable, sincere and dedicated individuals whose objectives are to make the roads safer. They are authorized to conduct the inspections and I am not sure if this is considered “certified”.

Question:
We are trying to update the FMCSA page to show required limits of liability insurance at $1,000,000 limits on an auto hauler. We also want to amend the name and address. We have updated the MCS-150 but it will not update the FMCSA page. Please advise how we update the FMCSA page.

Answer:
The FMCSA updates the information themselves. You do not. If you make changes to the name, address, etc. they will update the information, but there is some lag time. If you indicate that the insured is an auto hauler, they might or might not pick up the requirement for $1,000,000 limits. The insurance carrier must refile the 91X, reflecting $1,000,000 limits. Then the Licensing and Insurance will reflect what the insurance company has filed in a very short period of time.

Question:
The Motor Carrier Coverage Form “Other Insurance Primary & Excess Insurance Provisions” addresses written contract situations adequately. What happens when an insured fails to execute a written contract? For example, the insured hires an owner/operator with the intention of having the owner/operator provide primary insurance coverage, however fails to execute a written contract. The auto becomes a covered auto under both policies – the owner/operator’s policy presumably as a scheduled auto, and the insured’s policy as a hired auto. Does the policy form that the owner/operator carries have any bearing? Does an Additional Insured Endorsement alone suffice to dictate primacy? Or does the 5e of the MC form become applicable in establishing primary / excess coverage in this situation?

Answer:
I wrote my thoughts about the MCCF in a white paper. If you don’t have it yet, it can be found on our website under the King Pin Archives.

My thoughts are based on your description:

The owner/operator is leased to the motor carrier, but there is no written agreement. Technically this is a violation of the Federal Motor Carrier Safety Administration regulations to allow an owner/operator, or any other entity, to operate a non-owned auto by the motor carrier. There must be a written agreement between the parties so that the owner of the non-owned auto can operate under the motor carrier’s authority. I recognize often there is not a written agreement, which is a violation of the regulations.

The owner/operator has their own primary coverage and the name of the motor carrier and the DOT number of the motor carrier is on the side of the truck being operated by the owner/operator, and the shipping documents / bill of lading are in the name of the motor carrier. The motor carrier’s insurance policy has hired auto protection, either by symbol “Any Auto” or “Hired Car”.

The accident happens. The owner/operator is driving the truck and the owner/operator gets sued as the owner and operator of the auto, and the motor carrier gets sued because of their name on the side of the truck, the motor carrier is being held liable for the negligence of the driver and owner of the non-owned auto operating under the motor carrier’s authority.

The owner/operator’s policy will protect the owner/operator, as well as the motor carrier on a primary basis. Both of these entities will qualify as an insured under the owner/operator’s policy because the owner/operator is the insured in the policy and the motor carrier is being held liable for the actions of the owner/operator / driver. The owner/operator’s policy would provide defense and would pay up to the limits of the policy, if a settlement is reached or a judgment is within the limits of the policy. The insurance carrier of the owner/operator must obtain releases for all entities covered under the policy, the owner/operator as well as the motor carrier. The coverage is primary because the owner/operator owns the auto covered in this accident.

The motor carrier’s policy would come in excess of the owner/operator’s because the auto is not owned by the motor carrier and there is no written agreement that would bring the motor carrier’s coverage into the accident on a primary basis. (If there was a written agreement, and the owner/operator agreed to hold the motor carrier harmless and maintain primary insurance, then the claim would be handled this way, too.) The motor carrier’s policy would have a MCS 90, under recent court rulings which stated that as long as the minimum financial responsibility limits are met by any means, then the MCS 90 obligation is met, no matter whose policy the MCS 90 endorsement is attached to. So the motor carrier’s insurance carrier would have no exposure under the MCS 90, if the owner/operator’s carrier pays.

I see this happening in the future. I would recommend that if you insure the motor carrier, encourage them to have a written agreement that spells out who is responsible and because of the excess exposure the motor carrier should pay a premium, but based on excess insurance coverage, not primary. There is an endorsement that could be added to the owner/operator’s policy that would firm up the coverage. That endorsement is CA 2312. It protects the motor carrier for the owner/operator when using the motor carrier’s authority. It also provides the motor carrier with 30 days’ notice of cancellation of the coverage of the owner/operator’s policy. One other obvious consideration, the owner/operator must be with an insurance company that will be there to pay the claim with a Financial Rating A and leased auto covered by the policy.

Question:
We have a client who is currently hauling used cooking oil to processing plants out of state. They want to haul bio-diesel fuel back to the original location. Is bio-diesel classed like diesel? Will he need a $4 million umbrella over his $1 million Auto Liability?

Answer:
Petroleum products – gas, diesel, oil, grease and others – will all require $1,000,000. The federal webpage, Licensing and Insurance, will show the limit the 91X and MCS90 must reflect to be legal. That is what needs to be met by the insurance carrier. If currently the limit required reflects $750,000, even though you and I know they really need $1,000,000, I feel you should still only reflect the $750,000. If they update their 150 to reflect bio-diesel, or they get an inspection at their site, the limit might be changed and then the 91X and MCS90 need to be addressed at the new required limit ($1,000,000). Of course, this entity might need higher limits to protect their assets or meet shipper’s / customer’s requirements.

Question:
I have a prospect insured who has 125 power units, with locations in various states.

They have 50% owner/operators and 50% company vehicles.

The insured files the IFTA reports for the owner/operator miles. But the company vehicles are vehicles leased to them and rates are based on miles, so the leasing company files IFTA for company owned vehicles. The total miles combined amount to under 5 million miles a year.

The insured’s intrastate exposure is 15% of their overall operations. Most of the operations are within 50 miles. The insured is estimating 15 million miles a year total.

My question is: Once they get IFTA Registration, are they required to report all of their miles whether intrastate or local, or do they not have to report the local mileage? I am very confused and tried searching but I have not been able to find an answer to figure out why the IFTA does not include all miles for this operation.

Could it be that the insured is not required to file local miles only for trips that include intrastate miles? Can you please help me with this answer? And also guide me as to where I can find more detailed information for the governmental entity on a federal level in charge of regulating this?

Answer:
The reporting of mileage is per vehicle, not where the vehicle travels. If the vehicle is in interstate commerce, it must display an IFTA decal and all its miles are to be reported, intra and interstate, all miles.

If the vehicle never crosses state lines, it does not have to have an IFTA decal and their miles are not reported.

IFTA is a tax distribution system, so if the vehicle never crosses state lines there is no need for sharing fuel taxes with another state. If the vehicle crosses state lines, they need to report all miles as well as all fuel purchases so the fuel tax can be shared based not only on where the fuel is purchased, but where the unit travels.

IFTA is a state tax program, so to find out more details go to the state web page.

The IFTA account is tied to the federal DOT number, so the trucker is correct in filing their owner/operator miles under their account. I assume the leasing company has a DOT number, therefore reporting the miles under their account. This will change this year. A leasing company will no longer be able to obtain a courtesy DOT number so there will be a change in the arrangement between the trucker and the leasing company.

Question:
When an insured is checking their Safety Management System (SMS), how can they check to see if the chargeable offenses belong to them? We would like to be proactive and contest anything that does not belong to the insured. Is there a time period before offenses are rolled into the system?

Answer:
The insured can get additional information with their PIN number. They sign in using their DOT number and their PIN number.

The reason that the chargeable offense might not be the motor carrier’s:

– The unit was not owned by the motor carrier

– The license tag was not the motor carrier’s

– None of their trucks were at that location

– The driver was not an employee or leased to the motor carrier

– The officer was not correct

With the MC number, DOT number and PIN number, they can go to DataQ (https://dataqs.fmcsa.dot.gov/login.asp) and challenge the citation.

As I understand the process, the DOT officer inputs the inspection information. Most have the ability to do so in their cars. Otherwise they input the information when they return to the office. The inspection is posted in CSMS and accessible by using the motor carrier’s DOT number and PIN number. The results of the inspection will be included in the next month’s download, which affects the BASIC’s score percentile.

Question:
I submitted an application to a company. They ordered a report from CAB (Central Analysis Bureau) that contained contradictory information from that obtained from the applicant. 1) How does CAB gather their information? 2) Can CAB reports be relied upon for accuracy? 3) If the CAB has incorrect information, how can it be corrected?

Answer:
CAB is the elephant in the room. Most writers of “truckers insurance” are using their service to help “screen” motor carriers. The information is correct. It is the same information that can be found on the federal website. CAB just reformats the information and makes it more user friendly. The cost for this service is high. They do have a program for retail agents, but again it is costly.

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Ask Tommy

Tommy Ruke is the founder of the Motor Carrier Insurance Education Foundation and a leading professional in Truck Insurance. His roots in trucking began early as his father was a trucker who hauled pickles. After graduating from Wake Forest College, Tommy spent 10 years as an International Harvester dealer prior to entering the insurance field. In 1979 he started in the Certified Insurance Counselor program through the National Alliance and in 1983 developed their trucking education program, training insurance professionals around the country.

In 1988 he began working with the American Association of Managing General Agents developing their educational program and continued to deliver programs countrywide. He has worked with numerous insurance company, wholesale and retail agents, providing specialized truck insurance education and has served as a professional advisor to law firms requiring professional testimony.

In 2012, he founded the MCIEF. He holds the Certified Insurance Counselor designation, a lifetime Certified Professional Insurance Agent designation and a Certified Wholesale Insurance Specialist designation.

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