The Wrong Party
Q: My car was struck by a tractor-trailer. I sued the driver and his employer – the owner of the tractor (the cab). The defendants never showed up. We obtained a default judgment.
We hadn’t realized that the owner of the trailer was not the same company. We learned this in the course of litigation. We forwarded the default judgment to their insurer. The new insurer immediately disclaimed coverage on the ground that it had not received timely notice.
A: It always is best to identify the correct owners from the start. Nevertheless, you still have a good shot at winning.
Presumably, we are talking about a motor carrier that transports goods in interstate commerce. Attached to the liability policy, there is required to be a federally-mandated policy endorsement, known as ‘MCS’. Your lawyer should argue that the MCS endorsement displaces the notice provision in the policy.
An excellent argument is that the default judgment amounts to the final judgment that triggers the protection of the MCS endorsement. Under this endorsement, the insurer is obligated to pay any final judgment recovered against the insured, and for your purposes this overrides the notice condition.
A skilled attorney will emphasize that this accident occurred in the course of the trailer owner’s business and was, therefore, precisely the type of risk the insurer agreed to cover when it issued the liability policy. Based upon the negligence of the driver and the tractor owner, you could surely have obtained a judgment against the trailer owner. To require the insurer to pay is fair.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
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