Peterson, 011122 NEAGO, AGO 22-001

Docket NºAGO 22-001
Case DateJanuary 11, 2022
AGO 22-001
No. 22-001
Nebraska Attorney General Opinion
State of Nebraska office of the Attorney General
January 11, 2022
         SUBJECT: Authority of the Nebraska Public Service Commission to Adopt a Regulation Requiring Licensed Carriers of Railroad Employees to Maintain Uninsured and Underinsured Motorist Coverage in Excess of the Maximum Amounts Established in Neb. Rev. Stat. §44-6408(2) (2010).          REQUESTED BY: Dan Watermeier, Chair Nebraska Public Service Commission          WRITTEN BY: Douglas J. Peterson, Attorney General, L. Jay Bartel, Assistant Attorney General          INTRODUCTION          The Uninsured and Underinsured Motorist Coverage Act provides that insurers are not required to provide uninsured and underinsured motorist ["UM/UIM"] coverage at "limits higher than one hundred thousand dollars per person and three hundred thousand dollars per accident." Neb. Rev. Stat. § 44-6408(2) (2010)). The Nebraska Public Service Commission's ["Commission"] current regulations require that, in addition to minimum liability insurance, "all carriers of passengers will also carry uninsured and underinsured motorist coverage with a minimum limit of one hundred thousand ($100,000) per person, three hundred thousand ($300,000) aggregate per accident coverage." 291 Neb. Admin Code, ch. 3, § 006.02.          In 2020, the Legislature created a new category of motor carriers engaged in certain transportation of property or persons under a "license." 2020 Neb. Laws LB 461 (codified at Neb. Rev. Stat. §§ 75-109.01, 75-118, 75-124, 75-156, 75-301 75-302 75-303, 75-304.03, 75-304.04, 75-307, 75-308, and 75-311 (Cum. Supp. 2020)). Motor carriers operating under a "license" issued by the Commission include "a motor carrier engaged in the for-hire, intrastate transportation of (a) household goods under section 75-304.03 or (b) employees of a railroad carrier engaged in interstate commerce to or from their work locations under section 75-304.04." Neb. Rev. Stat. § 75-302(12) (Cum. Supp. 2020). These licensed motor carriers are excluded from the definitions of "regulated motor carrier," "common carrier," and "contract carrier." Neb. Rev. Stat. § 75-302(6), (7), and (19) (Cum. Supp. 2020). Licensed motor carriers are, however, required "to comply with the requirements of section 75-307." Neb. Rev. Stat. §§ 75-304.03(2) and 75-304.04(2) (Cum. Supp. 2020). Section 75-307 requires certificated intrastate motor carriers, including common and contract carriers, as well as licensed motor carriers as defined in § 75-302(12), to "comply with reasonable rules and regulations" of the Commission, including certain insurance and bond requirements.          You note the Commission is currently updating its Motor Carrier Rules and Regulations, and has been asked by interested parties to consider adopting a rule requiring UM/UIM coverage for licensed carriers of railroad employees in an amount in excess of the maximum amounts established under § 44-6408(2). You have requested our opinion whether the Commission has authority to adopt such a rule.          ANALYSIS          A. Scope of the Commission's Jurisdiction Over Licensed Motor Carriers.          Neb. Const, art. IV, § 20, provides:
There shall be a Public Service Commission....The powers and duties of such commission shall include the regulation of rates, service and general control of common carriers as the Legislature may provide by law. But, in the absence of specific legislation, the commission shall exercise the powers and perform the duties enumerated in this provision.
         This constitutional provision grants the Commission inherent authority to regulate common carriers. See, e.g., State ex rel. Spire v. Northwestern Bell Tel. Co., 233 Neb. 262, 445 N.W.2d 284 (1989) In the absence of specific legislation, the powers of the Commission to regulate common carriers are absolute and unqualified. Myers v. Blair Tel. Co., 194 Neb. 55, 230 N.W.2d 190 (1975); State ex rel. State Railway Comm'n v. Ramsey, 151 Neb. 333, 37 N.W.2d 502 (1949).          The Nebraska Supreme Court has recognized, however, that "the powers enumerated in article IV, § 20, apply only to common carriers." Nebraska Public Service Comm'n v. Nebraska Public PowerDist, 256 Neb. 479,491, 590 N.W.2d 840...

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