Vap, 030415 NEAGO, AGO 15-3

• Case Date: March 04, 2015
• Court: Nebraska

Gerald L. Vap, Chairman AGO 15-3 No. 15-003 Nebraska Attorney General Opinion State of South Carolina Office of the Attorney General March 4, 2015          SUBJECT: Authority of the Nebraska Public Service Commission to Adopt a regulation Requiring Minimum Uninsured/Underinsured Motorist Coverage for Moter Carriers of Railroad Train Crews in Excess of the Maximum Amounts Established in Neb. Rec. Stat. § 44-6408(2) (2010)          REQUESTED BY: Gerald L. Vap, Chairman Nebraska Public Service Commission          WRITTEN BY: Doug Peterson, Attorney General, L. Jay Bartel, Assistant Attorney General.          INTRODUCTION          The Uninsured and Underinsured Motorist Insurance Coverage Act Provides that insurers are not required to provide uninsured and underinsured motorist coverage at "limit 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 ["Commission''] is currently updating its motor carrier rules and regulations in 291 Neb. Admin. Code. Chapter 3. During the course of its rulemaking proceeding, the Commission was asked to consider adopting a rule requiring uninsured and underinsured motorist coverage for motor carriers of railroad train crews, The Commission's Motor Carrier Rules currently have minimum coverage requirements for liability and cargo insurance. 291 Neb,. Admin. Code § 3.006.01. The Commission does not, however, have any rules related to uninsured and underinsured motorist coverage. The current version of the proposed revisions to the Commission's Motor Carrier Rules included a provision requiring that "[c]arriers that provide transportation of railroad crews shall carry uninsured and underinsured motorist insurance coverage with a minimum limit of five hundred thousand ($500,000) per person, two million ($2,000,000) aggregate per accident coverage."^[1] You note the Commission's constitutional authority to regulate the "rates, service, and general control of common carriers...in the absence of specific legislation..." (Neb. Const, art. IV, § 20), and the statute (Neb. Rev. Stat. § 75-307 (2009) providing "the Commission has the authority to determine the 'reasonable amount' of insurance required for regulated passenger carriers." Various comments filed during the course of the Commission's rulemaking have suggested the Commission lacks authority to adopt a regulation establishing minimum uninsured/underinsured motorist insurance coverage limits for carriers transporting railroad crews that exceed the maximum coverage limits in § 44-6408(2). You state that "[o]ther interested parties have argued that the Commission, as a Constitutional entity, is not limited by § 44-6408(2)...", and that "§ 75-307 is a more specific grant of statutory authority to the Commission to determine the 'reasonable amount' of insurance for regulated motor carriers." You have asked our opinion on whether the Commission is authorized to adopt a regulation establishing minimum uninsured/underinsured motorist coverage amounts for motor carriers transporting railroad crews that exceed the maximum coverage limits in § 44-6408(2). For the reasons stated below, we conclude that the Commission currently lacks authority to adopt such a regulation.          ANALYSIS          A. Scope of the Commission's Jurisdiction Over Motor Carriers of Railroad Crews.          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 Power Dist, 256 Neb. 479, 491, 590 N.W.2d 840, 848 (1999) ["Nebraska Public Service Comm'n"]. "Thus, the [Commission's] constitutional authority over common carriers does not extend to contract carriers." Id. "In the absence of constitutional authority, an administrative agency has only that power which has been granted to it by the Legislature." Id. "When the Legislature grants the [Commission] jurisdiction over non-common carriers, the [Commission] must exercise such authority within the statutory scheme." Id. See also In re Complaint of Fecht, 216 Neb. 535, 540, 344 N.W.2d 636, 639 (1984) (As public grain warehouses are not "common carriers", Commission regulation of such warehouses "must be exercised completely within the statutory scheme....").          "The term 'common carriers,' as used in article IV, § 20, is coextensive with the meaning of that phrase at common law." Nebraska Public Service Comm'n, 256 Neb. at 491, 590 N.W.2d at 848. In State ex rel. Winnett v. Union Stock Yards Co., 81 Neb. 67, 74-78, 115 N.W. 627, 630-32 (1908) ['Winnett'], the Nebraska Supreme Court stated:

There are but two carriers known in law—private carriers and common carriers. A private carrier undertakes to deliver particular goods at a particular place. He is not bound in law to undertake such transportation. When opportunity for such employment is presented, he may reject it or avail himself of it as he sees fit. He enters into a contract applicable to and binding him only as to the particular undertaking. He does not hold himself out to the public as a carrier. Strictly speaking, at common law, so far as its vocation is concerned, a common carrier is one which holds itself out to the public as a carrier always open to employment for the transportation of persons or freight, and that it will carry for all persons indiscriminately.

         Discussing the statute defining common carriers to include various entities acting as carriers "engaged in the transmission of messages or transportation of passengers or freight for hire", the Court in Winnett stated:

The statute, we think, has reference to all companies or persons who hold themselves out to the public as engaged in those things which characterize it as a common carrier. It has been held that a common

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