Steve PIERRE, Respondent,

v.

PROVIDENCE WASHINGTON INSURANCE COMPANY, Appellant.

GRAFFEO, J.

In November 1994, plaintiff Steve Pierre was injured when his vehicle was struck by a tractor_trailer driven by Steven Harris. Harris' employer, Preston Conquest, owned the tractor cab but the trailer was owned by Blue Hen Lines, a federally_registered motor carrier engaged in the business of transporting goods in interstate commerce. Conquest had leased the tractor to Blue Hen and agreed to provide Blue Hen with a driver. In turn, the lease obligated Blue Hen to obtain liability insurance coverage for any personal injury and property damage that might arise as a result of operation of the tractor_trailer. It is undisputed that Harris was operating the vehicle in the course of Blue Hen's business when the collision occurred.

Blue Hen purchased a liability policy, which was in effect on the day of the accident, from defendant Providence Washington Insurance Company. As a condition precedent to coverage, a notice of accident provision in the policy required that an insured promptly notify the insurance carrier of any accident arising from operation of the vehicle. The parties agree that Harris and Conquest met the policy's definition of an "insured."

In June 1995, plaintiff sued Harris and Conquest, respectively the driver and owner of the tractor, obtaining a default judgment against them. After an inquest, a judgment for compensatory damages was entered in the amount of $227,560. In the course of litigation, plaintiff learned that Blue Hen owned the trailer and that Providence had issued a trucker's liability policy to Blue Hen to cover losses from motor vehicle accidents occurring in the course of Blue Hen's business. [FN1] Plaintiff forwarded the judgment to Providence and requested payment under Blue Hen's policy. Providence immediately disclaimed coverage on the ground that Harris and Conquest breached the notice of accident condition in the policy by failing to timely inform Providence of the accident involving Pierre. The disclaimer letter did not refer to plaintiff's failure to obtain a judgment against Blue Hen as a basis for denying coverage.

FN1. Plaintiff commenced a separate action against Blue Hen. According to defendant, the action was dismissed with prejudice; plaintiff indicates only that the action was "discontinued." In any event, the parties agree that, for reasons not disclosed in the record, the action against Blue Hen is no longer pending.

Plaintiff commenced this action against Providence in October 1997 seeking payment of the judgment. After discovery, Providence moved for summary judgment dismissing the complaint on the ground that the failure of Harris and Conquest to timely notify it of the accident absolved the company of liability.

Plaintiff cross_moved for summary judgment, relying on the terms of a federally_mandated policy endorsement, known as the MCS 90, attached to liability policies issued to motor carriers who transport goods in interstate commerce. Plaintiff noted that, under federal law, motor carriers must register with the federal government and demonstrate that they have secured adequate financial resources to pay judgments arising from accidents occurring in the course of their transport business, ordinarily accomplished through purchase of a liability insurance policy with the MCS 90 endorsement.

As required by federal regulation (see 49 CFR 387.15), the MCS 90 endorsement provides that the insurance carrier agrees to pay any final judgment "recovered against the insured for bodily injury or death of any person," as a result of the negligent operation of any vehicle, regardless of whether the vehicle is specifically described in the policy and despite the insured's failure to comply with policy conditions. In effect, the endorsement shifts the risk of loss for accidents occurring in the course of interstate commerce away from the public by guaranteeing that an injured party will be compensated even if the insurance carrier has a valid defense based on a condition in the policy. The burden is then on the insurer to pursue indemnification from other parties if coverage was not warranted under the terms of the underlying policy. In this case, plaintiff argued that the MCS 90 endorsement, which was required to be included in the liability policy Providence issued to Blue Hen, obviated the effect of the notice of accident condition in the policy, at least insofar as it obligated the insurance company to compensate plaintiff, the injured party.

In response to plaintiff's cross_motion, defendant claimed that an MCS 90 endorsement was not part of the insurance policy issued to Blue Hen. Although Providence had filed a certificate of insurance with the Interstate Commerce Commission certifying that it had included the endorsement and provided Blue Hen the coverage mandated by federal law, it initially asserted in Supreme Court that the MCS 90 endorsement was not part of the policy (a position it subsequently abandoned). In addition, Providence argued that even if the endorsement was read into the policy, it would not provide a basis for plaintiff to recover because plaintiff's judgment was against Harris and Conquest rather than Blue Hen, the named insured.

Supreme Court denied Providence's motion for summary judgment and granted plaintiff's cross_motion, holding that Providence was obligated to pay the judgment. Concluding that the federal security requirement had to be read into the policy, the court reasoned that the MCS 90 endorsement eliminated the prompt notice condition as a defense in a claim brought by an injured party. The court found that plaintiff could recover, notwithstanding his failure to obtain a judgment against Blue Hen, because Harris and Conquest met the policy's definition of an "insured" and the insurer was required under the endorsement to pay any final judgment "recovered against the insured."

Providence appealed and the Appellate Division affirmed, with one Justice dissenting. The court echoed Supreme Court's rationale and emphasized that the result was consistent with the public policy considerations underlying the MCS 90 endorsement requirement: to provide a safety net to members of the public injured as a result of negligent operation of tractor_trailers used in interstate commerce. Rather than applying the insurance policy's definition of "insured," the dissenting Justice would have relied on a definition that appears in the federal regulations, which he interpreted as more restrictive than the policy definition. The Appellate Division granted Providence leave to appeal to this Court and we now affirm.

Before we interpret the MCS 90 endorsement, it is helpful to consider the purpose of the federal statutory and regulatory scheme governing the interstate trucking industry. Congress passed the Motor Carrier Act of 1980 to update federal regulation of the national motor carrier industry "to reflect the transportation needs and realities of the 1980's" (Pub L 96_296, ¤ 3). The legislation was, in part, intended to address abuses that had arisen in the industry which threatened public safety, including the use by motor carriers of leased or borrowed vehicles to avoid financial responsibility for accidents that occurred while goods were being transported in interstate commerce (Empire Fire and Marine Ins. v. Guaranty National Ins., 868 F.2d 357, 362 [10th Cir1989] ).

The legislation imposed a "liability insurance requirement" upon each motor carrier registered to engage in interstate commerce which mandated that a motor carrier file "a bond, insurance policy, or other type of security" in an amount determined by the Secretary of Transportation and the laws of the State or States in which the motor carrier intended to operate (49 USC ¤ 13906[a][1]; see also former 49 USC ¤ 10927[a][1] ). The security must be sufficient to cover "each final judgment against the registrant for bodily injury to, or death of, an individual resulting from the negligent operation, maintenance, or use of motor vehicles, or for loss or damage to property" (49 USC ¤ 13906[a] [1]; see also former 49 USC ¤ 10927[a][1] ). Congress further provided that "[f]inancial responsibility may be established under this section by any one or any combination of the following methods acceptable to the Secretary: evidence of insurance, guarantee, surety bond, or qualification as a self_insurer" and authorized the Department to "establish, by regulation, methods and procedures to assure compliance with this section" (Pub L 96_296, ¤ 30[c] ).

With the oversight of the Interstate Commerce Commission, the Federal Department of Transportation promulgated regulations implementing the financial security requirements set forth in section 30 of the legislation, which were intended "to create additional incentives to motor carriers to maintain and operate their vehicles in a safe manner and to assure that motor carriers maintain an appropriate level of financial responsibility for motor vehicles operated on public highways" (49 CFR 387.1). The Department determined that the "legislative history of Section 30 indicates a congressional belief that increased financial responsibility will lead to improved safety performance as unsafe motor carriers will incur higher premiums than safe carriers, or will be unable to obtain coverage" (46 Fed Reg 30974 [1981] ). To this end, the Department concluded that section 30 was "a remedial legislative measure * * * [that] should be interpreted broadly" (46 Fed Reg 30974, 30977).

In particular, the Department promulgated a motor carrier endorsement form known as the MCS 90 (see 49 CFR 387.15). [FN2] The endorsement was to be attached to the trucker's liability policy issued to a motor carrier "for the purpose of providing notice to the general public that all criteria of Section 30 [thefinancial security requirements] have been met" (46 Fed Reg 30974, 30978). The endorsement reads, in relevant part:

FN2. Ultimately, the Department determined proof of financial security could consist of the MCS 90 endorsement issued by an insurer, the MCS 82 surety bond issued by a surety or the filing of a written decision, order or authorization of the Federal Motor Carrier Safety Administration authorizing the motor carrier to self_insure, provided the motor carrier maintained a satisfactory safety rating (see 49 CFR 387.7[d] ). However, at the time the MCS 90 endorsement at issue in this case was drafted, self_ insurance was not an available option (see 46 Fed Reg 30974, 30983).

"In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy and whether or not such negligence occurs on any route or in any territory authorized to be served by the insured or elsewhere. * * * It is understood and agreed that no condition, provision, stipulation, or limitation contained in the policy, this endorsement, or any other endorsement thereon, or violation thereof, shall relieve the company from liability or from the payment of any final judgment, within the limits of liability herein described, irrespective of the financial condition, insolvency or bankruptcy of the insured" (49 CFR 387.15). [FN3]

FN3. The endorsement further provides: "Such insurance as is afforded, for public liability, does not apply to injury to or death of the insured's employees while engaged in the course of their employment, or property transported by the insured, designated as cargo. * * * However, all terms, conditions and limitations in the policy to which the endorsement is attached shall remain in full force and effect as binding between the insured and the company. The insured agrees to reimburse the company for any payment made by the company on account of any accident, claim or suit involving a breach of the terms of the policy, and for any payment that the company would not have been obligated to make under the provisions of the policy except for the agreement contained in this endorsement. It is further understood and agreed that, upon failure of the company to pay any final judgment recovered against the insured as provided herein, the judgment creditor may maintain an action in any court of competent jurisdiction against the company to compel such payment. The limits of the company's liability for the amounts prescribed in this endorsement apply separately to each accident and any payment under the policy because of any one accident shall not operate to reduce the liability of the company for the payment of final judgments resulting from any other accident" (49 CFR 387.15).

The endorsement also states that any policy conditions or limitations remain in effect as between the insured and the insurance carrier and the carrier may obtain reimbursement from the insured for any payment the carrier would not have been obligated to make absent the endorsement. [FN4]

FN4. Like many regulations, the financial security regulations do not merely mimic the statute; they are more detailed and contain provisions not found in the enabling legislation. For example, in addition to allowing an injured party to recover from the insurer after obtaining a judgment against any party insured under the policy, not just the registered motor carrier, the MCS 90 endorsement also grants the insurance carrier a right to seek reimbursement from the insured for any judgment which would not have been paid but for the endorsement. If Providence believed that the literal language in the endorsement regulation__which does not restrict recovery to instances when an injured party has obtained a judgment against the registered motor carrier__was unduly broad or inconsistent with the enabling statute, it could have challenged the regulation in the appropriate forum. Moreover, the "interests of the insurance industry" were well represented in this original drafting of MCS 90 (see 46 CFR 30974, 30976), so it can hardly be supposed that the industry would fail to voice its objections to the endorsement. The issue not having been raised in this case, this Court is in no position to determine whether federal agencies exceeded their jurisdiction when they promulgated the endorsement. Although the dissent suggests that this regulation, as interpreted by the federal courts, may be so broad as to exceed the regulatory authority delegated by Congress (dissent, at 6, 13), that issue is simply not before us.

In this case, Providence now concedes that the MCS 90 endorsement must be read into the liability policy as if it had been attached when Providence issued the policy to Blue Hen. The parties also agree that the endorsement modifies the terms of the policy by excusing any conditions or limitations, including the notice of accident condition on which Providence disclaimed. It is further undisputed that Blue Hen agreed in its lease agreement with Conquest to provide liability coverage for the use of the tractor_trailer in Blue Hen's business and that this motor vehicle accident occurred in the course of Blue Hen's business. [FN5] Indeed, this is precisely the type of risk Providence agreed to cover when it issued the trucker's liability policy to Blue Hen. [FN6]

FN5. The lease also provides that the driver of the tractor_trailer "shall be subject to the direction and control of the LESSEE," Blue Hen. This provision, like the agreement to provide liability coverage, is required by law (see 49 CFR 376.12[c][1] ).

FN6. Providence issued a policy which covered Harris and Conquest. Thus, the insurance carrier is not being held accountable for the risks posed by "unknown third parties" (dissent, at 9); it is being directed to pay a judgment obtained against parties it agreed to insure. Rather than redefining "[t]he risk for which the insurer issued the policy" (dissent, at 14), we are applying the policy definition of "insured" drafted by Providence.

The parties disagree, however, on what the injured party must do to be entitled to the expanded protection afforded by the MCS 90 endorsement. The controversy focuses on the meaning of the phrase "any final judgment recovered against the insured" in the MCS 90 endorsement.

Plaintiff notes that the term "insured" is not defined in the endorsement and argues as a result that the court must look to the definition of that term in the body of the policy. Because Harris and Conquest fall within the policy definition of insured, plaintiff contends the final judgment against them constituted the requisite "final judgment recovered against the insured" referenced in the MCS 90 endorsement. Providence argues that the endorsement must be viewed as distinct from the underlying policy and that its enhanced protections are triggered only if the injured party obtains a judgment against the named insured who purchased the policy, in this case Blue Hen. Notwithstanding the definition of "insured" in the policy, Providence contends that same term has a separate meaning under the endorsement, which can be discerned only by reference to other financial security regulations. We agree with plaintiff.

The MCS 90 endorsement, a creature of federal regulation, must be interpreted according to federal law. Federal courts that have interpreted the endorsement in the context of claims brought by injured parties have consistently focused on the literal language of the endorsement and the underlying policy to determine its meaning (see Integral Ins. Co v Lawrence Fulbright Trucking, Inc., 930 F.2d 258 [2d Cir1991] ). Appellate courts have also consistently held that an insurance company may be obligated to compensate an injured party under an MCS 90 endorsement even if the motor carrier who purchased the underlying policy was not the negligent party responsible for causing the injuries (id.; see also John Deere Ins. Co. v Nueva, 229 F3d 853 [9th Cir2000], cert denied 534 U.S. 1127 [2002]; Campbell v. Bartlett, 975 F.2d 1569 [10 th Cir1992]; Lynch v. Yob, 95 OhioSt3d 441 [2002] [United States Supreme Court certiorari application pending] ). In other words, the motor carrier who purchased the insurance__the so_called "named insured"__need not have been negligent; all that is required is that the accident resulted from negligence and that a judgment was entered implicating the coverage provisions of the policy and endorsement.

Three federal cases are particularly helpful in resolving the issue before us. In each case, an insurance company was obligated to compensate an injured party under an MCS 90 endorsement even though the judgment in the personal injury action was not obtained against the named insured.

In John Deere Ins. Co. v. Nueva (229 F3d 853), plaintiff Nueva, a bus driver, suffered personal injuries when his bus collided with a tractor_trailer driven by Garcha. The tractor was owned by a company (Blue Star) and an individual, both uninsured. The trailer was owned by Sahota, the named insured in a trucker's liability policy issued by John Deere Insurance Company. Prior to the accident, Sahota had agreed to sell the trailer to Blue Star but title had not yet been transferred; the trailer was being operated by Blue Star in the course of its business when plaintiff was injured. Plaintiff sought to recover under the MCS 90 endorsement to Sahota's liability policy. John Deere sought a declaratory judgment that it had no duty to indemnify Sahota, Garcha or Blue Star because the trailer was not among the covered vehicles listed in the policy. The District Court granted John Deere summary judgment but the United States Court of Appeals for the Ninth Circuit reversed and held that plaintiff could recover under the endorsement.

The Ninth Circuit's analysis turned on the definition of "insured" in Sahota's liability policy. As permissive users of a vehicle not listed in the policy's schedule of covered vehicles, Garcha and Blue Star did not meet the policy definition of insured. However, noting that the MCS 90 endorsement states that the insurer agrees to pay "regardless of whether or not each motor vehicle is specifically described in the policy," the court concluded that the endorsement negated the policy limitation which restricted coverage to accidents involving covered vehicles, thereby expanding the policy's definition of an insured to encompass Garcha and Blue Star. The Ninth Circuit rejected John Deere's argument that the use of the word "insured" in the endorsement referred only to Sahota, the named insured, ultimately holding that John Deere was obligated to compensate plaintiff under the policy "for any judgment against Garcha and Blue Star up to the policy maximum" (John Deere Ins. Co. v. Nueva, 229 F3d at 860).

Adams v. Royal Indemnity Co. (99 F3d 964 [10th Cir1996] ) also involved an action brought by an injured plaintiff seeking to recover under an MCS 90 endorsement. The underlying personal injury judgment was entered against the driver of the tractor_trailer rather than the named insured__the motor carrier that leased the vehicle and purchased the trucker's liability policy. The Court of Appeals for the Tenth Circuit held that the motor carrier's policy could be used to pay the judgment obtained against the driver of the truck, who was using the vehicle with the motor carrier's permission at the time of the accident, even though the truck was not listed as a covered vehicle in the policy. As in John Deere, the driver did not fall within the policy definition of an insured but the court determined that the MCS 90 endorsement modified and expanded the policy definition, thereby bringing the driver within the ambit of the policy and rendering the insurance company liable for payment of the judgment.

In another Tenth Circuit case, Campbell v. Bartlett (975 F.2d 1569), the injured party secured a judgment against the trucking company that bought the liability policy and its driver employee, who had caused the accident by driving under the influence of alcohol. In addition to a compensatory damages judgment entered against the company and the driver, a punitive damages judgment was entered against the driver alone. The Tenth Circuit held that the insurance carrier was required to satisfy both portions of the judgment, even though the punitive damages award had not been assessed against the named insured. The court concluded that the dispositive issue was whether the driver was an insured within the terms of the MCS 90 endorsement. Noting that the endorsement itself does not define who is an insured, the court interpreted the term using the definition in the liability policy. Because the driver, a permissive user of a covered vehicle, met the policy definition of an insured, the insurance carrier was responsible for payment of the judgment.

The pivotal factor in these cases was not which party the personal injury judgment was entered against; instead, the focus was on the coverage provisions of the liability policies to which the MCS 90 endorsements were attached. In cases where the party responsible for the accident fell within the policy definition of an insured (as in Campbell ) or was insured under the policy coverage provisions as specifically modified by the MCS 90 endorsement (as in John Deere and Adams ), the injured party was entitled to payment under the endorsement, regardless of whether the responsible party happened to have been the named insured who purchased the policy. This is the only result consistent with the public policy underpinnings of the endorsement: shifting the risk of loss in motor vehicle accidents involving tractor_trailers operated in interstate commerce by guaranteeing that an injured party will be compensated even if a condition in the liability policy would otherwise provide the insurance carrier with a valid defense. [FN7]

FN7. We have relied on the recent decisions in John Deere, Campbell and Adams rather than the federal cases cited by the dissent (dissent, at 12, n 11) because those cases are factually distinguishable or are otherwise unpersuasive. Most predated the Motor Carrier Act of 1980 and the financial security regulations promulgated thereunder. Only one involved a claim by an injured member of the public (see Wellman v. Liberty Mutual Ins. Co., 496 F.2d 131, 137 [8th Cir1974] [court did not interpret the terms of the MCS 90 endorsement or its predecessor] ). As the Ohio Supreme Court noted, claims involving an injured parties' right to compensation "implicate the key rationale behind the MCS_90 endorsement, which is the protection of the public" (Lynch v. Yob, 95 OhioSt3d at 447). Disputes between insurance companies (see Carolina Casualty Ins. Co. v Ins. Co. of North America, 595 F.2d 128 [3rd Cir1979]; National Mutual Ins. Co. v. Liberty Mutual Ins. Co., 196 F.2d 597 [DC Cir], cert denied 344 U.S. 819 [1952] ), coverage claims brought by defendants in personal injury actions (Del Real v United States Fire Ins. Co., 64 FSupp2d 958 [ED Cal], affd without opn 188 F3d 512 [9th Cir1999] ) or those brought on behalf of employees of the motor carrier (White v. Excalibur Ins. Co., 599 F.2d 50 [5th Cir], cert denied 444 U.S. 965 [1979] [wrongful death claim by representative of off_duty driver of tractor_trailer killed by negligence of another employee rejected, in part, because decedent was not a member of the public] ) are of limited value because they do not require courts to interpret the endorsement in light of the public policy concerns underlying the financial security requirements. In Del Real, the only recent case identified by the dissent, the named insured was not a motor carrier subject to federal financial security requirements. In addition, the Ninth Circuit's rationale for upholding the denial of a coverage claim by the defendants in the personal injury action is unknown because the case was affirmed without explanation in an unpublished decision (see Del Real v United States Fire Ins. Co., 188 F3d 512).

The same result should obtain in this case. Indeed, plaintiff's claim is even stronger than that of the injured parties in John Deere and Adams because it is undisputed that Harris and Conquest meet the policy's definition of an insured. [FN8] Providence disclaimed coverage based solely on the alleged failure of the defendants named in the judgment to meet the notice of accident condition in the policy. This condition is specifically negated in the MCS 90 endorsement insofar as payment to the injured party is concerned. Accordingly, because Providence is obligated under the endorsement to pay "any final judgment recovered against the insured," plaintiff was entitled to summary judgment directing Providence to pay the judgment against Harris and Conquest, its insureds. [FN9]

FN8. Plaintiff's claim is significantly stronger than that in John Deere because the accident occurred in the course of Blue Hen's business and was, therefore, precisely the type of risk Providence agreed to cover when it issued the trucker's liability policy to Blue Hen, its named insured.

FN9. In so holding, we do not impose "absolute liability" on the insurer as the dissent contends (dissent, at 14). The policy Providence issued to Blue Hen covered Harris and Conquest. In addition, Blue Hen was responsible, under the lease agreement and by federal law, for the negligent conduct attributed to Harris and Conquest as the dissent recognizes (dissent, at 10). Since we all agree that plaintiff could have obtained a judgment against Blue Hen based solely on the negligence of Harris and Conquest, there is no basis to claim that it is somehow unfair to require Blue Hen's insurer to pay the judgment against Harris and Conquest.

We reject Providence's contention that the MCS 90 endorsement should not be treated as a part of the underlying trucker's liability policy but should be viewed as imposing conditions distinct from those contained in the policy. [FN10] First, we note that we are bound to interpret the endorsement according to federal law and none of the federal courts which have determined claims brought by injured parties under the MCS 90 endorsement have adopted this approach. Rather, in each case, the courts have interpreted the endorsement by reference to the policy to which it is attached. Second, by its literal language, the endorsement simply does not provide separate coverage. Like most endorsements to insurance policies, it explicitly cross_references and incorporates several of the terms of the policy.

FN10. Rather than citing judicial authority for this argument, Providence and the dissent (dissent, at 8_9) rely on an amicus brief filed by the United States Solicitor General on behalf of the United States Department of Transportation in opposition to the insurer's application for a writ of certiorari in the United States Supreme Court in the John Deere case. In that brief, the Solicitor General took the position that the Ninth Circuit had erred in concluding that an insurance company could be compelled under an MCS 90 endorsement to pay a judgment against someone other than the named insured. The Solicitor General nonetheless opposed a grant of certiorari because he concluded that a judgment would be obtained against someone other than the motor carrier only if the motor carrier loaned its vehicle to another motor carrier who failed to carry the requisite insurance.

The facts of this case fall outside such an assumption and are otherwise distinguishable from John Deere, most notably because Harris and Conquest were insureds under the policy. Due to these distinctions, and the fact that the Department has apparently never stated its views in any other forum (with the exception of the regulatory history we cite), it is unclear what the Solicitor General's position would be in this case. In John Deere, the Solicitor General noted that no insurer or other entity has ever sought administrative guidance in this regard which may explain the lack of agency documentation addressing the question. Although the Department is in a position to amend the endorsement regulation to substitute the term "named insured" or "registered motor carrier" for the term "insured" for purposes of clarification, despite the decisions of the federal courts on which we rely, it has not done so. For all of these reasons, we credit federal appellate court authority based on the legislative and regulatory history articulated at the time the pertinent regulations were adopted rather than deferring to the views expressed in an amicus brief submitted in another, distinguishable case (see generally, United States v. Mead, 533 U.S. 218, 238 n 19 [2001] [Court declined to defer to federal agency position expressed in Solicitor General's brief] ).

Most significantly, the endorsement delineates circumstances when the insurance carrier must compensate an injured party even if the policy purports to absolve the insurer of responsibility. Had the drafters intended to use the endorsement to create contractual obligations distinct from those in the policy, they would have included separate provisions in the endorsement defining coverage, rather than merely negating exceptions included in the policy. Under Providence's view of the endorsement, a party insured under the policy might not be covered under the endorsement. We see nothing in the language of the endorsement indicating that coverage is being contracted in this manner; to the contrary, by its plain terms the endorsement unreservedly eliminates any conditions or limitations in the policy for purposes of compensating an injured party.

The dissenting Justice at the Appellate Division focused on definitions included elsewhere in the financial security regulations in concluding that the term insured as used in the endorsement has a different, more narrow meaning than the definition provided in the policy. [FN11] This approach is inconsistent with the analysis of the federal courts and does not effectuate the policy considerations underlying the financial security requirements. In addition, the definitions relied on are themselves susceptible of multiple interpretations. Elsewhere in the financial security regulations the terms "insured and principal" are defined as "the motor carrier named in the policy of insurance, surety bond, endorsement, or notice of cancellation, and also the fiduciary of such motor carrier" (49 CFR 387.5). Using this definition to interpret the term "insured," the Appellate Division dissenter concluded the endorsement provided expanded coverage only when there was a final judgment against the motor carrier named in the policy of insurance, in this case Blue Hen. However, the same regulation that defines insured contains an expansive definition of "motor carrier" which "includes, but is not limited to, a motor carrier's agent" (49 CFR 387.5 [emphasis added] ). We cannot say that Conquest, with whom Blue Hen contracted to lease the tractor and provide a driver, and Harris, who was driving the vehicle pursuant to the lease agreement in the course of Blue Hen's business, were not agents of Blue Hen for purposes of the financial security requirements, or do not otherwise meet this non_ exclusive definition of motor carrier. Indeed, the mandated lease provision giving Blue Henthe right to "direct and control" the driver would weigh heavily in an analysis of whether the driver was an agent of the motor carrier (see e.g., Maurillo v. Park Slope U_Haul, 194 A.D.2d 142, 146 [1993] ). Therefore, even if we were to rely on these definitions instead of the policy definition of insured, the fact that plaintiff obtained a judgment against Harris and Conquest rather than Blue Hen would not necessarily lead to a holding that plaintiff was barred from recovery under the MCS 90 endorsement.

FN11. It should be noted that the MCS 90 endorsement contains special definitions of some terms used therein, including accident, motor vehicle, bodily injury and public liability. Several of these definitions were proposed by commenters "representing the interests of the insurance industry" (see 46 Fed Reg 30974, 30976). The term insured, however, is not among them.

Finally, we are unpersuaded that our interpretation of the term "insured" is unworkable in the context of other provisions of the endorsement, including the clause which allows the carrier to seek reimbursement from the insured, in some circumstances, for proceeds paid out under the endorsement. Providence apparently assumes that it could not pursue reimbursement from Harris and Conquest because it did not directly contract with them. This issue is not before us and we therefore do not decide it. We observe only that no obvious impediment appears to preclude the carrier from pursuing indemnification from the negligent parties.

Accordingly, the order of the Appellate Division should be affirmed, with costs. The certified question should not be answered upon the ground that it is unnecessary inasmuch as the Appellate Division order was final.

WESLEY, J. Dissenting:

We respectfully dissent.

For 67 years, Congress has required an interstate motor carrier to provide proof of financial security as a precondition to registration. When the motor carrier satisfies this obligation by obtaining liability insurance coverage, Congress has imposed a limited federal exception (the MCS_90 endorsement) to the insurance contract__the insurer must pay, up to the limits of liability, any judgment obtained against the motor carrier, notwithstanding any coverage preconditions or limitations in the insurance contract. [FN1] Because this exception is a creation of federal law, one must look to the statute and regulatory scheme, not the insurance contract, to resolve this case.

FN1. An MCS_90 endorsement is often referred to as an ICC endorsement because its form was initially prescribed under statutes delegating some of the enforcement of their provisions to the Interstate Commerce Commission. The BMC_90, the original ICC endorsement, was the predecessor to the MCS_90 and was in all material respects identical to the MCS_90. Congress abolished the ICC in 1995 (see Pub.L. No. 104_88, 109 Stat. 803) and provided that "[a]ll * * * regulations * * * issued" by the ICC in performing functions transferred to the Secretary of Transportation "shall continue in effect according to their terms until modified, terminated, superseded, set aside or revoked in accordance with law" (ICC Termination Act, Pub.L. No. 104_88, ¤ 204[a], 109 Stat. 941). The Motor Carrier Safety Improvement Act of 1999 (Pub.L. No. 106_159, 113 Stat. 1748) created the Federal Motor Carrier Safety Administration ("FMCSA") within the Department of Transportation ("DOT"), and charged it with carrying out "duties and powers related to motor carriers or motor carrier safety vested in the Secretary" by various provisions of Title 49 (Pub.L. No. 106_159, ¤ 113[f][1], 113 stat. 1750).

On November 30, 1994, Steve Pierre was injured at the intersection of Eastern Parkway and St. John's Place in Brooklyn when his 1980 Ford van was struck on the passenger side by a tractor trailer as it attempted to make a left turn across Pierre's lane of travel. The tractor was owned by Preston Conquest and was leased to Blue Hen (Blue Hen owned the trailer). The tractor was operated by Stevie Dwayne Harris, an employee of Conquest. Providence Washington Insurance Company issued a commercial motor vehicle liability policy to Blue Hen that covered the tractor and trailer. The policy contained a prompt notice of loss clause.

In June of 1995, Pierre commenced an action against Harris and Conquest. [FN2] The summons and complaint were served on the Secretary of State pursuant to section 253 of the Vehicle and Traffic Law. Not surprisingly, neither Conquest nor Harris appeared and Pierre took a default judgment against both with an assessment of damages and costs for $227,560 following an inquest. [FN3] In early October 1996 (well within the statute of limitations), Pierre commenced a second lawsuit. This time, Blue Hen was the only named defendant. Providence served a reservation of rights letter shortly thereafter while assigning counsel to represent Blue Hen. For reasons not reflected in the record, Pierre discontinued this action . [FN4]

FN2. Although Pierre claimed the tractor trailer struck his vehicle, he did not sue for property damage.

FN3. Pierre asserts that he sustained a herniated disk and several bulging disks. He was not transported to the hospital for the accident. The record contains no medical reports documenting his injuries.

FN4. Plaintiff's counsel notes in his brief that the action was discontinued. We agree with the majority that the basis for the discontinuance is not apparent in the record.

While the Blue Hen action was pending, Pierre's attorneys notified Providence of the default in the Harris/Conquest action and demanded payment on the judgment. Providence denied coverage based on the failure of Harris, Conquest or Blue Hen to provide timely notice of the accident as required by the policy. Two months later, plaintiff commenced this action. The complaint asserts that Conquest, Harris and Blue Hen are "insureds" under the policy and Providence must therefore pay the Harris and Conquest judgment pursuant to section 3420 of the Insurance Law.

Pierre and Providence cross_moved for summary judgment. Supreme Court granted Pierre's motion without reaching the merits of Providence's late notice defense. The court examined the MCS_90 endorsement in conjunction with the Providence policy. The court reasoned that the MCS_90 requires Providence to pay any judgment against "the insured" within the limits of liability without regard to any contract preconditions (such as prompt notice). Since Harris and Conquest were each an insured under the policy, Providence was ordered to pay the judgment.

The Appellate Division affirmed with one justice dissenting (see Pierre v Providence Washington Ins. Co., 286 A.D.2d 139 [2nd Dept.2001] ). The court acknowledged that the MCS_90 is mandated by federal law. However, the court asserted that federal regulations did not define "insured" and looked to the language of the policy to determine the meaning of that term as used in the MCS_90. "The endorsement (MCS_90) must be read in conjunction with other provisions of the policy" (id., at 145). Because Harris and Conquest were "other insureds" under the policy, the court concluded that the provisions of the MCS_90 precluding denial of liability premised on a coverage limitation or exclusion was in play. The dissenter took the view that the clear legislative purpose of the statutorily mandated MCS_90 was to suspend limitations of coverage in commercial motor carrier policies only when a judgment is obtained against the named insured__the registered motor carrier. The dissenter adopted the reasoning of the Federal District Court in a similar case (see Del Real v U.S. Fire Ins. Crum & Forster, 64 F Supp 958, affd 188 F3d 512 [9th Cir1999] ).

In our view, the language of the MCS_90 can only be understood in the statutory and regulatory context that created the form. The words employed are those of Congress and the Secretary of Transportation. They were not chosen by Providence; they were imposed by the Federal government.

The Secretary of Transportation has regulatory authority over the transportation of goods or passengers by motor carriers in interstate commerce (see 49 USC ¤ 13501). No person may operate as a motor carrier subject to that jurisdiction unless registered to do so (see 49 USC ¤ 13901). Federal registration of a commercial motor carrier is conditioned upon the carrier's filing with the Secretary of Transportation proof of insurance, a security bond or other security sufficient to pay, up to a prescribed limit "for each final judgment against the registrant for bodily injury" or property damage "resulting from the negligent operation, maintenance, or use of motor vehicles" (49 USC ¤ 13906[a][1] ) (emphasis added). The focus of the statute is repeated in its implementing regulations. "[N]o certificate or permit shall be issued to such a carrier * * * unless and until there shall have been filed with and accepted by the FMCSA [Federal Motor Carrier Safety Administration] surety bonds, certificates of insurance, proof of qualifications as self_ insurer, or other securities or agreements * * * conditioned to pay any final judgment recovered against such motor carrier " (49 CFR 387.301[a][1] ) (emphasis added). [FN5] In essence, the same language is carried over to the MCS_90; however, because that form is designed to be attached to an insurance policy, the form provides that the insurer will pay "any final judgment recovered against the insured " (49 CFR 387.15) (emphasis added).

FN5. The Secretary's regulations set a minimum coverage requirement at $750,000 (49 CFR 387.7[a] ).

We find it very troubling that the majority view of the endorsement is broader than the enabling legislation. If indeed the regulatory language is broader than the statute that authorizes it, one would think that a court would interpret the regulation consistent with the statute, or limit its sweep to that permitted by Congress. Apparently the majority feels comfortable with this admitted excess. Our view of the language of the endorsement is limited to that authorized by Congress.

We agree with the majority that the endorsement is a creature of federal law. Thus, federal law governs how we must view the endorsement and its terms (see Clarendon Natl. Ins. Co. v. Insurance Co. of West, 2000 U.S. Dist. LEXIS 13920 * 13, 2000 WL 892864, * 5 [ED Cal June 30, 2000][finding federal law governs the interpretation of the federally mandated MCS_90 provision]; see also Carter v. Vangilder, 803 F.2d 189, 191 (5th Cir1986) [finding that federal law applies to the operation and effect of federally_mandated endorsements] ). However, we would restrict our analysis to the traditional sources employed in examining the language of a document that is created by a regulation. Those regulations do provide a definition of "the insured" as used in MCS 90 (see 49 CFR 387.5). Under the regulation "insured" is defined as "the motor carrier named in the policy of insurance, surety bond, endorsement, or notice of cancellation * * * " (id.) (emphasis added). In the context of the statutory and regulatory provisions the MCS_90 form is designed to implement, "the insured" can only sensibly be read to refer to the named insured to whom the underlying policy is issued__that is, the motor carrier that must obtain the policy in order to comply with federal statutory requirements.

The phrase "the insured" appears numerous times in the form. [FN6] Pursuant to settled federal rules of statutory construction, where the same word or phrase is used in different parts of a statute or act, the same meaning must attach to each (see Atlantic Cleaners & Dyers, Inc. v United States, 286 U.S. 427, 433 [1932]; see also United States v. Kennedy, 233 F3d 157, 161 [2d Cir2000] ). Consequently, an examination of the endorsement illustrates that the phrase "the insured" means the named motor carrier, Blue Hen. For example, pursuant to the MCS_90, "[c]ancellation of the endorsement may be effected by the company or by the insured " (49 CFR 387.15). To suggest that either Harris or Conquest could cancel Blue Hen's policy makes no sense. Similarly, the MCS_90 is issued to "assure compliance by the insured " with federal responsibility requirements (id.). Because neither Harris nor Conquest is a common carrier, neither is subject to federal carrier requirements and could not possibly be within the meaning of "the insured" for purposes of the endorsement.

FN6. See Majority Opn, at 9 fn 4 for text of form MCS_90.

Furthermore, "the ultimate criterion is the administrative interpretation [of the regulation], which becomes of controlling weight unless it is plainly erroneous or inconsistent * * * " (Bowles Price Adm'r. v. Seminole Rock & Sand Co., 325 U.S. 410, 414 [1945]; see M/O Council of The City of New York v Pub. Serv. Commn. of the State of New York, ___ N.Y.2d ____, ____ 2002 N.Y. Slip Op 07485 * 8 [October 22, 2002][" 'the interpretation of a regulation by the agency which promulgated it and is responsible for its administration is entitled to deference if the determination is not irrational or unreasonable' "], quoting Matter of Gaines v Div. of Hous. & Community Renewal, 90 N.Y.2d 545, 549 [1998] ). In conjunction with this appeal, Providence has submitted the Solicitor General's amicus brief on a petition for a writ of certiorari to the United States Supreme Court in a case relied on by the majority, John Deere Ins. Co. v. Nueva (229 F3d 853 [9th Cir2000], cert denied, 122 S.Ct. 1063 [2002] ). The amicus brief represents the official view of the Department of Transportation, the Federal Motor Carrier Safety Administration and the United States Department of Justice with regard to the MCS_90 and the responsibilities of an insurer of a registered motor carrier under the statute. In their view, the existing federal regulations only require a carrier's insurer to satisfy a judgment, regardless of the coverage terms of the policy, when the judgment includes the carrier. [FN7]

FN7. The majority is content to ignore the views of the Secretary of Transportation and finds comfort in that it adopts the insurance contract based analysis of the Ninth and Tenth Circuits. We on the other hand think the view of the Secretary of Transportation__who created the form__does deserve deference (see Chevron, USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 [1984] ).

The Solicitor General notes that limiting the obligation assumed by the insurer under the federal financial responsibility rules to judgments that include the named insured is consistent with the logic and structure of the statute. MCS_90 requires Providence to accept liability beyond that which it would normally insure in a state_regulated transaction. The endorsement, however, also requires a corresponding concession by the insured motor carrier, Blue Hen, to reimburse the insurer for any payments the insurer makes on claims that are not covered by the underlying policy. Consequently, the increased risk imposed on the insurer is that the carrier will be unable to satisfy the reimbursement obligation. Because this risk can be easily assessed with regard to a prospective named_insured__but not with respect to unknown third parties__ it makes sense to limit the obligation assumed by the insurer to judgments that include the named insured. [FN8]

FN8. The majority concludes that because Harris and Conquest were "other insureds" under the policy, they were not "unknown third parties" to Providence (Maj. Opn, at 11 fn 7). We disagree. There is nothing in this record that would imply that Providence knew or would know of all of Blue Hen's lease arrangements or the financial status of those entities. Certainly, Harris and Conquest were not specifically identified by the policy as named insureds.

The statute and regulations protect the public in the event of an accident involving vehicles owned or operated by commercial motor carriers (see National Mut. Ins. Co. v. Liberty Mutual Ins. Co., 196 F.2d 597 [DC Cir1952] cert denied, 344 U.S. 819 [1952] ). They guarantee that resources will be available to pay a final judgment obtained by an injured member of the public against a carrier for injury caused by negligent operation, maintenance or use of a carrier's vehicle, even if the policy itself does not provide coverage in the particular case, and even if the carrier is otherwise insolvent. In essence, the statute and regulations provide unencumbered coverage (coverage without preconditions or disclaimers) as long as the injured party obtains a judgment against the carrier regardless of the legal theory. [FN9]

FN9. The majority's view would create a curious anomaly. A motor carrier can satisfy the financial security requirements of the statute by filing a bond (MCS_82). However, the bond mandates payment only upon a judgment against the motor carrier (see J.B. Hunt Transport Inc. v USF Distribution Services Inc., 2002 U.S. Dist. LEXIS 17166 [ED Pa 2002] ). Thus, an injured third party would obtain two different results depending upon the method of statutory compliance chosen by the motor carrier. There is no basis in law or logic for such a distinction.

In addition to requiring carriers to obtain liability insurance, Congress and the Secretary of Transportation have imposed "control and responsibility" obligations on the carriers. A motor carrier subject to DOT jurisdiction is required to "have control of and be responsible for operating those [leased] motor vehicles" (49 USC ¤ 11107[a][4] ). To enforce this provision, the DOT regulations mandate that every lease entered into by a DOT_licensed carrier contain a provision that requires the interstate carrier/lessee to "assume complete responsibility for the operation of the equipment for the duration of the lease" (49 CFR 1057.12[c] ). We cannot discern how Pierre could not have prevailed in the Blue Hen action and obtained a judgment against Blue Hen premised on the lease. The federal financial responsibility provisions were designed to ensure the collectability of any such judgment__not to relieve the injured party from the obligation to obtain a final determination of legal liability.

Form MCS_90 is not intended, and does not purport to vary any term of the underlying coverage. To the contrary, the form specifically preserves those terms as between the insurer and the named insured. The endorsement requires the insurer to pay certain judgments entered against the motor carrier, whether or not the events giving rise to the judgment come within the policy's coverage, and subject to reimbursement by the carrier if they do not. It does not, however, modify the policy's definition of an "insured."

If an injured party obtains a judgment against the insured motor carrier, the endorsement requires the insurer to pay the judgment, without regard to coverage under the policy. Conversely, if the injured party obtains a judgment against a defendant other than the insured motor carrier, the insurer may or may not be required to pay that judgment under the policy__for instance, if Pierre can establish that timely notice of the accident was given to Providence, then consideration of the endorsement is unnecessary. [FN10] The policy and the endorsement while linked, impose different obligations based on different key determinants: An obligation to indemnify (i.e. pay without reimbursement) based on the policy's coverage of a particular risk, or an obligation to make payment in the first instance, subject to possible reimbursement based on a final judgment entered against the motor carrier itself. The majority and the cases on which it relies conflate the two. [FN11]

FN10. In opposing Providence's summary judgment motion, Pierre submitted an affidavit from Harris in which Harris asserts that he notified Blue Hen of the accident. Had Pierre obtained a judgment against Blue Hen, the late notice issue would be academic and the judgment long since paid.

FN11. Although the majority eschews the Solicitor General's position in favor of those expressed by federal appellate courts (Majority Opn, at 17), the majority fails to consider decisions of the federal courts over the last 50 years, all of which take the view that liability of an insurer under MCS_90 would only be triggered by a judgment against the registered motor carrier (see National Mut. Ins. Co., 196 F.2d at 599 [the court, after examining language of the BMC_90 endorsement, the predecessor to the MCS_90, found that an insurer is required to make payment under the endorsement only upon entry of a judgment that included the insured motor carrier]; Wellman v. Liberty Mut. Ins. Co., 496 F.2d 131, 139 [8th Cir1974][finding the financial responsibility provisions only allow recovery when the injured party takes the intermediate step of obtaining judgment against the carrier]; White v. Excalibur Ins. Co., 599 F.2d 50, 55 [5th Cir1979] cert denied, 444 U.S. 965 [1979] [finding under 49 USC ¤ 315, the predecessor to the current 49 USC ¤ 13906, that "in order for [the insurer] to be liable under the policy filed by [the carrier] with the ICC, [the carrier] must first be adjudicated liable as a party"]; Casualty Ins. Co. v Insurance Co. of North America, 595 F.2d 128, 139 [3rd Cir1979][finding the governing statute and regulation do not require a motor carrier to "defend claims * * * or to pay judgments entered against others" but "require only that the carrier give security 'to pay any final judgment recovered against such motor carrier ...'; they mention * * * nothing about payments of judgments recovered against other parties"]; Del Real v United States Fire Ins. Crum & Forster, 64 F Supp 2d 958, 964 [ED Cal 1998], affd, Del Real v United States Fire Ins. Crum & Forster, 188 F3d 512 [1999][finding "[t]he language of the endorsement, the relevant federal regulations * * * indicate that the term 'the insured' refers only to the named insured"] ).

Simply put, the MCS_90 is a separate federally mandated obligation that if a third party obtains a judgment against the motor carrier, the insurer cannot disclaim coverage based on any limitation of, or precondition to, coverage. The statute contains safeguards against a motor carrier erecting legal barriers against liability for the acts of others operating under the benefit of its interstate carrier registration. Indeed, Pierre does not contend he could not obtain a judgment against Blue Hen, nor has the majority here or at the Appellate Division made such a claim. The majority agrees with us that the statutory genesis of MCS_90 requires a motor carrier to obtain an insurance policy that will pay a final judgment against the registrant (Majority Opn, at 7). Somehow, this clear legislative language is abandoned to accomplish what the majority views as the purpose of the statute through a concededly broader interpretation of MCS_90.

The sum of the majority's efforts is an odd result. Plaintiff contends he was injured when his vehicle was struck by a tractor trailer. He commenced an action for personal injuries, against the non_resident driver and non_resident owner of the tractor by alternate service. Both default. Plaintiff then sues the named insured within the statute of limitations and although federal law supports his claim, he discontinues the action. Plaintiff then sues the insurer on the judgment. He now seeks to avoid the possibility that no one ever informed the carrier of the accident until after entry of the default judgment.

The policy concededly covers the driver and owner of the tractor. The insurer reserved its rights under the prompt notice provision of the policy and seeks a judicial determination on that claim. Under well_settled principles of New York law, we would give effect to the prompt notice provision in such a case if there were no issues of fact in that regard (see Security Mutual Ins. Co. of New York v. Acker_Fitzsimons Corp. et al., 31 N.Y.2d 436 [1972] ). Although the form that gives effect to the will of Congress was drafted by the Secretary of Transportation, the majority engages in a new form of statutory/regulatory construction by interpreting the language of the form not in the context of the statute that directed its creation or the regulation that gave it life, but by reference to a private insurance contract. Thus, the language of the form is not to be understood as an expression of the intent of Congress, but as another term of the policy. The risk for which the insurer issued the policy is redefined by a form the insurer did not draft.

The majority's view of the MCS_90 eviscerates the policy and creates absolute liability against the insurer for anyone injured by a vehicle operating under the motor carrier's registration who obtains a judgment against only the operator. It substitutes its view of good policy for the express provisions chosen by Congress. Had Congress intended such a result, it could have been easily accomplished. It could have required that the provisions of the MCS_90 apply to a judgment not just against "the insured," but against "any insured" as defined in the liability policy (see Wellman, 496 F.2d at 139).

We would therefore modify the order of the Appellate Division and remit the matter to Supreme Court for consideration of the merits of defendant's motion for summary judgment based on the late_notice provisions of the policy.

* * *

Order affirmed, with costs. Certified question not answered as unnecessary.

Chief Judge KAYE and Judges CIPARICK and ROSENBLATT concur.