                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 05-2384



JOE LEE MCGIRT; DAT TAN LE,

                                            Plaintiffs - Appellees,

     versus


GULF INSURANCE COMPANY,

                                             Defendant - Appellant,

     and


ROYAL INSURANCE COMPANY OF AMERICA,

                                                         Defendant.



                                05-2419



DAT TAN LE,

                                             Plaintiff - Appellant,

     and


JOE LEE MCGIRT,

                                                         Plaintiff,

     versus
GULF   INSURANCE  COMPANY;     ROYAL    INSURANCE
COMPANY OF AMERICA,

                                              Defendants - Appellees.



                              No. 05-2420



JOE LEE MCGIRT,

                                               Plaintiff - Appellant,

     and


DAT TAN LE,

                                                            Plaintiff,

     versus


GULF   INSURANCE  COMPANY;     ROYAL    INSURANCE
COMPANY OF AMERICA,

                                              Defendants - Appellees.



Appeals from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (CA-02-
3455)


Argued:    October 26, 2006               Decided:   November 30, 2006


Before WILKINS, Chief Judge, and WIDENER and MOTZ, Circuit Judges.


Affirmed in part and reversed in part by unpublished per curiam
opinion.




                                  -2-
ARGUED: Robert Lawrence Ferguson, Jr., FERGUSON, SCHETELICH &
BALLEW, P.A., Baltimore, Maryland; William Carlos Parler, Jr.,
PARLER & WOBBER, Towson, Maryland, for Appellant/Cross-Appellees.
Salvatore Joseph Zambri, REGAN, HALPERIN & LONG, P.L.L.C.,
Washington, D.C.; Patrick Giles Cullen, ROLLINS, SMALKIN, RICHARDS
& MACKIE, Baltimore, Maryland, for Appellees/Cross-Appellants. ON
BRIEF: Shannon E. Peters, FERGUSON, SCHETELICH & BALLEW, P.A.,
Baltimore, Maryland, for Appellant/Cross-Appellee Gulf Insurance
Company.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               -3-
PER CURIAM:

     The injured driver of a passenger car, Dat Tan Le, and the

driver of the tractor trailer that injured him, Joe Lee McGirt

brought     this   declaratory   judgment   action.   They   sought   a

declaration that, upon the insolvency of the self-insured owner of

the tractor trailer and its primary supplemental insurer, the

owner’s two excess insurers must pay any judgment in favor of Le in

an underlying tort suit from the first dollar of the judgment.        Le

and McGirt also ask that the excess insurers defend McGirt in the

underlying tort suit and pay his attorneys’ fees here.       They argue

that both the language of the excess insurance policies and the

MCS-90 endorsement attached to one of those policies require this

coverage.

     On cross-motions for summary judgment, the district court held

that the language of the underlying policies did not require drop-

down coverage, defense of McGirt in a tort suit, or payment of his

attorneys’ fees.     McGirt v. Royal Ins. Co. of Am., 399 F. Supp. 2d

655, 669 (D. Md. 2005).    However, the district court also held that

the MCS-90 endorsement attached to one excess policy required that

excess insurer to pay the first $1 million of any judgment in favor

of Le.    Id. at 667.    The parties cross-appeal.    After having had

the benefit of oral argument and briefing from the parties, and

after carefully reviewing the legal authorities and record, we

conclude that the district court did not err in any respect as to


                                   -4-
its decision on the attachment point of the underlying insurance

policies, the insurers’ duty to defend McGirt, or the payment of

McGirt’s attorneys’ fees.       As to these issues, we affirm on the

basis of the district court’s well-reasoned opinion.         We reverse,

however, with respect the effect of the MCS-90.



                                     I.

      On or about March 24, 1997, a passenger car driven by Keith

Blocker hit Le while he was driving in Prince George’s County,

Maryland, immobilizing Le’s car on the highway.       A tractor trailer

owned by Builders Transport and driven by McGirt then hit Le from

behind.      The collision killed a passenger in Le’s vehicle and

severely injured Le.     On or about January 15, 1999, Le sued McGirt,

Builders, Family Dollar Trucking (the owner of the trailer being

hauled by McGirt), and Blocker.

      This case concerns Builders’ insurance status.         Federal law

mandates evidence of financial responsibility for motor carriers

engaged in interstate commerce. 49 U.S.C.A. § 31139(f) (2006). At

the   time   of   the   accident,   Builders   satisfied   these   federal

regulatory requirements through approval by the Interstate Commerce

Commission (ICC) and Department of Transportation (DOT) as a

qualified self-insurer for the regulatory minimum of $1 million of

coverage.      In addition, Builders carried supplemental primary

insurance with Reliance National Indemnity Company for $1 million


                                    -5-
of coverage above the $1 million self-insurance, subject to a $1.65

million annual deductible. Builders also purchased excess coverage

from Gulf Insurance Company for $13 million, and further excess

coverage of $10 million above the Gulf policy from Royal Insurance

Company of America.

       The parties agree that all of these policies were in effect at

the time of the accident.         Thus, if Builders and its various

insurers had all remained solvent, a party like Le seeking to

recover a judgment from Builders would be paid in the following

order: (1) $1 million from Builders, through its self-insurance;

(2) $1.65 million, also from Builders, as its deductible under the

Reliance policy; (3) $1 million from Reliance; (4) $13 million from

Gulf; (5) $10 million from Royal.

       This case arises because both Builders and Reliance have

become insolvent, and so unable to pay any judgment obtained by

Le.1       Because these primary insurers -- responsible for the first

$3.65 million of coverage -- cannot pay, Le and McGirt argue that

Gulf and Royal are required to drop down and pay first dollar

coverage for Le’s injuries.       That is, even though Gulf and Royal

would not have had to pay any part of a judgment for Le until an

award exceeded $3.65 million if Builders and Reliance remained

solvent, Le and McGirt contend that, given the insolvency of


       1
      In May 1998, Builders filed for Chapter 11 Bankruptcy, and in
October 2001, Reliance declared itself insolvent and liquidated its
assets.

                                    -6-
Builders and Reliance, Gulf and Royal must pay the judgment from

its first dollar.

      Le and McGirt base their intentions on the language of the

Gulf and Royal policies and the MCS-90 endorsement attached to

Gulf’s policy.      As noted above, we believe the district court

properly rejected the arguments based on the main body of the Gulf

and Royal policies.     Accordingly, we turn to the effect of the MCS-

90 endorsement attached to the Gulf policy.



                                    II.

      The district court found, and Gulf now concedes, that a one-

page form -- the federally prescribed MCS-90 endorsement -- was

attached to and thus a part of Gulf's policy with Builders.              Noting

the   provision    in   federal    law    for   an    MCS-90      in     certain

circumstances, the district court accepted Le and McGirt's argument

that this public policy purpose requires Gulf to provide the first

$1 million of coverage when, as here, there is no other protection

available for an injured member of the public.

      Sections 29 and 30 of the Motor Carrier Act of 1980 mandate

that motor carriers hauling general commodities in interstate

commerce,   like     Builders,     demonstrate       proof   of        financial

responsibility in one of four ways: (1) insurance; (2) a guarantee;

(3) a surety bond; or (4) qualification as a self-insurer.                    49

U.S.C.A. § 31139(f) (2006).       Federal regulations provide that if a


                                    -7-
registrant opts to pursue the first option and demonstrate its

financial responsibility through proof of insurance, the insurer

must maintain a “Form MCS-90 Endorsement” as part of the policy.

49 C.F.R. § 387.15 (2006).                 In these circumstances, the parties

must    also   file     a    separate      certification    of    excess    financial

security (Form BMC-91 or BMC-91X) with the regulators to create a

public record of the insurance.               49 C.F.R. § 387.313 (2006).

       Certainly the district court was correct in recognizing the

public purpose served by an MCS-90 endorsement when a motor carrier

uses it to satisfy the obligations of the Motor Carrier Act of

1980.       As    the       Department       of   Transportation        explained    in

promulgating the rule creating the MCS-90, “[t]he purpose of the

financial responsibility provisions of the Motor Carrier Act of

1980 is . . . to assure the general public that a motor carrier

maintains an adequate level of financial responsibility sufficient

to satisfy claims covering public liability.”                    Minimum Levels of

Financial Responsibility for Motor Carriers, 46 Fed. Reg. 30,974

(June 11, 1981).

       In   the   case       at    hand,    however,   Builders     satisfied       the

requirements      of    the       Motor    Carrier   Act   of    1980    through    its

certification as a qualified self-insurer, not through the MCS-90

attached to the Gulf policy.                As a result, Gulf was not legally

required to include an MCS-90 endorsement with Builders’ policy,

nor to file a BMC-91 or BMC-91X with the federal government.


                                            -8-
Federal law recognizes the risks inherent in satisfying the 1980

Act’s financial responsibility requirements through self-insurance:

“When ‘self-insurance’ is involved, there is no security for the

protection of the public other than the self-insured’s financial

strength . . . .” 46 Fed. Reg. 30974 (June 11, 1981).            In sum, the

federal regulatory scheme contemplates that there may be situations

in which a member of the public will not be able to recover from a

self-insured motor carrier.

     Thus, the general public purpose of the MCS-90 endorsement --

although important in interpreting the endorsement when it is used

to satisfy the Motor Carrier Act of 1980 -- does not resolve the

dispute   here   when   the   endorsement   is   not   legally    required.

Instead, we must look to the language of the MCS-90 endorsement

attached to the Gulf policy to determine the endorsement’s effect

on Gulf’s contractual obligations.



                                   III.

     The single-page MCS-90 form endorsement allows the parties to

mark a box indicating whether the underlying policy to which the

MCS-90 is “attached provides primary or excess insurance . . . for

the limits shown.”      On the MCS-90 attached to the Gulf policy, the

parties marked an “X” before the “excess” statement, and filled in

limits of $1 million as shown:




                                   -9-
     [ ] This insurance is primary and the company shall not
     be liable for amounts in excess of $_________________ for
     each accident.

     [X] This insurance is excess and the company shall not be
     liable for amounts in excess of $1,000,000      for each
     accident in excess of the underlying limit of $1,000,000
     for each accident.


The form next includes a series of definitions, including that

“Public Liability means liability for bodily injury, property

damage, and environmental restoration.”   The form then recites the

contents of the endorsement:

     The insurance policy to which this endorsement is
     attached provides automobile liability insurance and is
     amended to assure compliance by the insured, within the
     limits stated herein, as a motor carrier of property,
     with Sections 29 and 30 of the Motor Carrier Act of 1980
     and the rules and regulations of the Federal Highway
     Administration (FHWA) and the Interstate Commerce
     Commission (ICC).

     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 financial responsibility requirements
     of Section 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. 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.
     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,

                               -10-
     within the limits of liability herein described,
     irrespective of the financial condition, insolvency or
     bankruptcy   of  the   insured.  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.


     Le and McGirt, citing the policy language providing that the

insurer agrees to pay “any final judgment recovered against the

insured for public liability,” argue that the MCS-90 requires Gulf

to drop down and pay any judgment for the public liability of

Builders in this case, i.e. the first million dollars.   But the key

language -- “within the limits of liability described herein” --

comes immediately before this requirement.      As an excess policy,

the Gulf policy ordinarily would not attach until there has been a

judgment of $3.65 million, so that the “limits” of the Gulf policy

are between $3.65 million and $16.65 million.    Thus, it would seem

that the first $3.65 million of any potential judgment recovered

against Builders for its public liability is not “within the limits

of liability described.”

     Even so, Le and McGirt argue that the language “no condition,

provision, stipulation, or limitation . . . shall relieve the

company from liability or from the payment of any judgment” means

that the major “limit of liability” of the Gulf policy -- that it

                               -11-
is an excess, not a primary policy -- should be “read out” of the

policy, and not apply. But the policy expressly repeats the phrase

“within the limits of liability herein described” in this sentence

of the endorsement, indicating that the ceiling and floor of the

“limits of liability” remain intact.

     The district court nevertheless found the MCS-90 endorsement

ambiguous.   Although neither the court nor Le and McGirt expressly

so state, seemingly the only possible source of ambiguity revolves

around the word “herein.” Conceivably, “herein” could refer to the

limits written on the MCS-90 itself next to the box checked on the

top of the form, rather than the limits of the policy to which the

form is attached.   However, all three times that the term “herein”

is used in the MCS-90, the “policy” itself is also referenced

earlier in the sentence.   Further, the MCS-90 limits are described

on the top of the form, above all three of these references, so the

use of the word “herein” instead of the word “above” in the MCS-90

indicates the reference is to the underlying attached policy.

Moreover, the MCS-90 states that the underlying policy to which it

is attached “is amended to assure compliance by the insured, within

the limits stated herein, as a motor carrier of property within

Sections 29 and 30 of the Motor Carrier Act of 1980 and the rules

and regulations of the Federal Highway Administration (FHWA) and

the Interstate Commerce Commission (ICC).”   This language further

indicates that the MCS-90 only changes the limits of the body of


                                -12-
the policy if required to do so to comply with federal law.

Because Builders self-insured for the minimum regulatory amount,

this purpose is not triggered here.

       Nor do we find persuasive Le and McGirt’s contention that

interpreting the MCS-90 in this manner robs it of all meaning.

What the excess MCS-90 does is negate an insurer’s ability to rely

upon       policy   conditions   --   such   as   notice   requirements   or

restrictions to vehicles or incidents covered -- to disclaim

coverage.       It does not alter the point at which an insurer’s

liability is triggered.          In sum, the MCS-90 does not change the

attachment point of Gulf’s obligations -- a judgment of $3.65

million.

       We note that the only other circuit to consider the meaning of

the MCS-90 in this context -- in a case involving the same insurer

and insured -- has reached the same conclusion as to its effect on

the policy limits.2      The Sixth Circuit, in Kline v. Gulf, 2006 U.S.

App. LEXIS 25755 (6th Cir. Oct. 18, 2006), held that the MCS-90

attached to Gulf’s excess insurance policy with Builders “did not

change Gulf’s liability.”         Id. at *12.     As we do now, the Sixth

Circuit concluded that the “herein” language surrounding “limits of

liability” in the MCS-90 “incorporated the limits of liability in


       2
      The panoply of appellate cases upon which Le and McGirt rely
involve primary insurance policies, or excess policies with no MCS-
90 endorsement, or MCS-90 endorsements necessary to satisfy federal
requirements, or disputes between insurers involving multiple MCS-
90 endorsements. Accordingly, these cases are inapposite here.

                                      -13-
the original insurance policy; it did not replace them.”              Id.    Of

course, in Kline, Reliance had not yet become insolvent, so the

injured member of the public could recover part of her judgment

from Reliance.      Although the Sixth Circuit noted that fact as an

additional basis for its conclusion, it initially held that “the

language of the MCS-90 as a whole . . . leads to the conclusion

that   Gulf   did   not   change    its   coverage   when   filling   out   the

government-prepared form,” i.e. the MCS-90.            Id. at *9.

       We recognize that this decision leads to an unfortunate

outcome for the injured member of the public.                But given that

federal law seeks to protect the public by guaranteeing some proof

of financial responsibility by motor carriers, not by mandating a

minimum payment to the injured, we are bound by the terms of the

contract between Builders and its insurers.



                                       IV.

       For the foregoing reasons, the judgment of the district court

is

                                   AFFIRMED IN PART AND REVERSED IN PART.




                                      -14-
