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Lynch v. Yob6/12/2002
lieve that the facts of Del Real are more closely aligned with the situation before us.
. I also believe that the majority's decision to expand the MCS-90's coverage to reach permissive users defies both logic and common sense. In this case, the negligence of the driver of the tractor was undisputed and the tractor's liability insurance policy will indemnify him and the tractor owner up to the policy limits. Allegations of negligence made against the trailer's owner have been dropped. The driver and owner were merely permissive users of the trailer and not considered insureds for purposes of the trailer's liability insurance or MCS-90 endorsement. There is no final judgment against the trailer's insured.
. Nevertheless, as a result of today's opinion, the trailer's insurer would have to pay a judgment against a party other than its own insured. Furthermore, the insurer now has a right under the MCS-90 to recoup the payment from its insured for another person's negligence. The majority acknowledges this problem as a peripheral issue that it need not consider. It is, however, an example of the majority's overreaching interpretation and the illogical results it yields.
. The word "insured" in the MCS-90 refers to the insured identified in the body of the primary liability policy. Campbell v. Bartlett (C.A.10, 1992), 975 F.2d 1569; Natl. Mut. v. Liberty Mut. (C.A.D.C.1952), 196 F.2d 597; Del Real, 64 F.Supp.2d 958. I do not agree that the meaning of "insured" may be expanded to include permissive users who are not insured under the policy. The purpose of the MCS-90, as the majority stresses, is the protection of the public. However, it must be within the confines of the contractual relationship established by the MCS-90. Therefore, for the foregoing reasons, I respectfully dissent and would affirm the judgments of the court of appeals.
Moyer, C.J., and T. Bryant, J., concur in the foregoing dissenting opinion.
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