Susan J. Thorn v. Amalgamated Transit

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1082
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National Indemnity Company, *
*
Plaintiff-Appellee, *
*
v. *
*
Ozark Mountain Sightseeing, Inc.; *
Ross Graham, individually and as *
personal representative of estate of *
Juanita Graham; *
*
Defendants-Appellees, *
* Appeal from the United States
Lancer Insurance Company, * District Court for the Western
* District of Missouri.
Defendant-Appellant. *
------------------------------------------------ * [UNPUBLISHED]
Ross Graham, individually and as *
personal representative of estate of *
Juanita Graham, *
*
Third Party Plaintiff-Appellee, *
*
v. *
*
Lexington Insurance Company, *
*
Third Party Defendant-Appellee. *

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1 The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
2 Form MCS-90 is an “Endorsement for Motor Carrier Policies of Insurance for
Public Liability Under Section 18 of the Bus Regulatory Reform Act of 1982.”
3 Ozark was insured under a business auto liability policy through Appellee,
National Indemnity Company, providing $1 million in coverage. Ozark also had a
business auto excess liability policy issued by Lexington, which provided an
additional $4 million in coverage. Both of these policies contained a Form MCS-90.
-2-
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Submitted: September 10, 2002
Filed: September 26, 2002
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Before BOWMAN, LAY, and MURPHY, Circuit Judges.
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PER CURIAM.
Lancer Insurance Company appeals from the district court’s 1 partial grant of
summary judgment in favor of National Indemnity Company in its declaratory
judgment action. The district court held that Lancer is obligated to provide coverage
for the claim at issue, and that Lancer’s policy is primary to the coverage provided
through the MCS-90 endorsement 2 to National Indemnity Company’s business auto
liability policy, and to the MCS-90 endorsement to Lexington Insurance Company’s
excess policy. Lancer also appeals the district court’s decision that it has no
subrogation rights against Ozark Mountain Sightseeing, Inc. 3

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4 Summit Coaches is a bus transportation company owned by L&L, Inc., insured
at all times relevant to this action under a business auto liability policy through
Lancer Insurance Company, with limits of $5 million.
-3-
Lancer’s insured, Summit Coaches,4 operated a bus tour from Kalamazoo,
Michigan to Branson, Missouri in June, 1995. After arriving in Branson, the Summit
tour bus had a mechanical breakdown. Summit hired a replacement bus and driver
from Ozark. The Ozark replacement bus subsequently struck and injured Juanita
Graham, a pedestrian. Mrs. Graham died approximately one year later, and a claim
for personal injuries was brought by her estate. A $1.75 million judgment was
rendered against Lancer, National, and Lexington, jointly and severally.
The district court found that the replacement bus provided by Ozark to Summit
qualified for coverage as a temporary substitute vehicle under the terms of the Lancer
policy, and that Ozark’s drivers qualified for coverage as permissive drivers.
Accordingly, the district court held that the Lancer policy provided coverage for
Ozark and its drivers.
Further, the district court held that the Lancer policy was primary over the
National and Lexington MCS-90 endorsements, finding that MCS-90 endorsements
are not treated as coverage where other insurance policies are available to provide
full coverage for the victim’s injuries. The district court rejected Lancer’s argument
that it had a right to seek reimbursement from Ozark, upholding the general rule that
insurers cannot seek reimbursement from insureds.
Finally, the district court rejected Lancer’s claim that a two-year delay in
notification of the accident resulted in prejudice to Lancer. To the contrary, the
record indicates that Lancer was given a chance to participate, but declined, before
the 1999 and 2000 state court suits were filed.

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We have reviewed the record and find the district court committed no error of
law.
The district court is AFFIRMED. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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