The pattern of facts in this case is a common one. See, for example, Insurance Co. of North America v. Continental Casualty Co., 575 F.2d 1070, 1071 (3d Cir. 1978); Carolina Casualty Insurance Co. v. Underwriters Insurance Co., 569 F.2d 304, 306 (5th Cir. 1978); Walter v. Dunlap, 368 F.2d 118 (3d Cir. 1968). An ICC-certified motor carrier (here, Refrigerated Transport Co.) leases a truck; the lessor of the vehicle (here, Charles Stanford) also provides the driver (here, Hugh F. Wicker). The truck, while carrying goods on the lessee's business and displaying the lessee's ICC placards, is involved in an accident. Members of the public (here, the Babcocks), alleging injury in the accident, sue lessee, lessor and driver for damages. The insurers of the defendants in that case, meanwhile, stand anxiously by, each trying to bow the other through the courtroom door first. The result is a separate declaratory judgment action in which the lessor's insurer (here, the Carolina Casualty Insurance Co.) and the lessee's insurer (here, The Insurance Company of North America) seeks a determination as to which has the unwanted honor of first entering to defend and pay a settlement or judgment in the underlying action against their insureds.

This is an appeal from such a declaratory judgment. The district court in this declaratory action granted summary judgment in favor of the lessor and his insurer, declaring that the defendants had primary responsibility for defending and paying any settlement or judgment in the underlying tort action, which was then pending in the District Court of Delaware. We affirm in part and reverse in part, holding that the lessor and his insurer also have duties of defense and payment, and we remand for further determinations of fact and law.

The Carolina Casualty Insurance Company ("Carolina") and Charles Stanford ("Stanford"), appellees in this appeal, brought the action in the district court, alleging jurisdiction under 28 U.S.C. § 13321 and seeking a declaration that Carolina's "policy of liability insurance applies only as excess insurance over other valid and collectible insurance . . ." (5a). Carolina is the insurance carrier for Stanford. Stanford is the owner of a tractor-trailer rig which he leased to Refrigerated Transport Co. ("Refrigerated"), appellant in this appeal and defendant in the declaratory judgment action. Also a defendant in that action was The Insurance Company of North America ("INA").2 Refrigerated held a special contract of automobile liability insurance with INA, under which Refrigerated was in effect a self-insurer for the first $25,000. of loss resulting from any one occurrence,3 while INA's coverage extended to the amount of loss in excess of $25,000. up to a combined limit of $1,000,000.4

After defendants had filed an answer and a counterclaim for a declaration that Carolina's coverage was primary and their own merely excess (40a-42a), plaintiffs and defendants moved for summary judgment (51a, 52a).

For the purpose of the cross-motions for summary judgment, the parties entered into the following stipulation of facts (53a-55a):

"On or about August 29, 1973, Refrigerated entered into a trip-lease contract with Charles Stanford by which Refrigerated paid a specified compensation for the use of Mr. Stanford's 1969 white (sic) tractor and 1971 utility van trailer, with driver, for the hauling of certain goods over Refrigerated's interstate commission's route to New York City, New York. (5 . . .

"On and prior to August 30, 1973, Refrigerated engaged in interstate trucking as a certificated carrier licensed by the Interstate Commerce Commission. Refrigerated's ICC permit No. is 107515. To protect itself against liability for certain motor vehicle accidents, Refrigerated, as required by ICC rules and regulations and federal law, entered into a contract of liability insurance with INA. (6 Under that policy the driver (Hugh F.) Wicker, was an 'additional insured' by virtue of plaintiff's 'omnibus clause'. INA certified its policy with refrigerated (sic) to the ICC as required by 49 U.S.C.A. § 315. . . .

"Stanford, the owner-lessor, was not in the business of transporting freight and merchandise, except exempt agricultural commodities, in Inter-State Commerce. Stanford is and was not licensed as a certificated carrier by the Inter-State Commerce Commission. At the time of the lease of his tractor-trailer to Refrigerated, Stanford had in effect a liability insurance policy with the Carolina Casualty. (7 . . .

"On August 30, 1973, the tractor-trailer, during the lease by Charles Stanford to Refrigerated, and while engaged in hauling goods and materials under the authority of Refrigerated's ICC permit and displaying the latter's ICC placards, collided with a 1973 BMW driven by Courtland T. Babcock, II, at the toll booths of the Delaware Memorial Bridge. Courtland T. Babcock, II, was the operator of the 1973 BMW; his (then-) wife, Barbara, was riding in the right front seat; their two children were riding as passengers in the rear seat. Courtland and Barbara Babcock brought suit in this Court for their alleged personal injuries. (The title of that action is Babcock v. Wicker, Stanford & Refrigerated Transport Co., Civil No. 75-133 (D.Del., Nov. 30, 1978). During the course of trial, Barbara Babcock withdrew her claim for relief against all defendants.) . . .

"Both INA and Carolina Casualty contend that its (sic) respective policy of liability insurance applies only as excess insurance over the other company's valid and collectible insurance for the claims of the Babcocks. Both companies take the position that the other's policy is primary, valid and collectible insurance. In the alternative, both companies contend that each policy should apply to the claim of the Babcocks, with each insurance company being obliged to contribute to the satisfaction of any judgment obtained or settlement achieved in the same ratio as their respective limits bear to each other."

The district court entered summary judgment in favor of plaintiffs on February 13, 1978, declaring that Refrigerated and INA, "to the extent of coverage and within the limits of liability contained in the insurance contract, are primarily responsible for defending" the Babcocks' underlying tort case, "and for paying any settlement or judgment recovered by the Babcocks in that suit" (80a-81a). The court's accompanying memorandum opinion (82a-89a) stated that these primary responsibilities fell to Refrigerated and its insurer, because, under federal motor carrier regulations, "liability for damages to the Babcocks is imputed to, and imposed by law on, Refrigerated . . . ." (85a). The court held that a purported "hold harmless" agreement, executed by the driver on behalf of the lessor and in favor of the lessee, could not shift primary responsibility to Stanford and his insurer. In addition, the court declined to rule on other issues relating to possible common law rights to indemnity from Stanford and Carolina on the ground that "these issues would require advisory opinions . . . because the underlying Babcock case has not yet been resolved" (89a).

Refrigerated moved for reargument under Local Rule 16 (109a-110a); the district court denied this motion (114a-115a). Thereupon Refrigerated filed notice of this appeal (116a).8 INA has not appealed from the declaratory judgment.

After the filing of briefs in this appeal, but before oral argument, the underlying Babcock case went to trial. The claims which were presented to the jury in that case included: (1) common law negligence of the driver Wicker; (2) vicarious liability of both Refrigerated and Stanford for the negligent acts of Wicker as employee of both Refrigerated and Stanford; (3) per se negligence of Wicker, Stanford and Refrigerated for failure to maintain operative brakes and inability to stop within a specified distance, as required by Department of Transportation regulations, 49 C.F.R. §§ 393.489 and 393.52;10 (4) per se negligence of Refrigerated for failure to inspect or for negligent inspection of the tractor-trailer before commencement of the trip lease, in violation of 49 C.F.R. § 1057.4(c);11 and (5) strict liability of Stanford, as the lessor of defective equipment.12 In addition, Refrigerated and Stanford had each filed cross-claims against the other for contribution and indemnification in the event that Babcock's claims should prove successful.13

The findings of fact in Babcock were made by the jury's answers to a series of special interrogatories and a subsequent questionnaire, which the trial court submitted to the jury after the charge. This court granted the motion of the parties to supplement the record on appeal with copies of the special interrogatories and subsequent questionnaire and the jury's answers thereto. In the answers to the special interrogatories the jury awarded damages of $34,000. to Courtland Babcock. It allocated 20% Of the fault for the accident to Stanford, lessor of the tractor-trailer, and 80% To the lessee, Refrigerated, while finding no fault on the part of the driver, Wicker. In its answers to the subsequent questionnaire, the jury found: (1) that it had not been adequately proved that the tractor-trailer involved had at the time of leasing a defective braking system which proximately caused the accident and injuries; (2) that Refrigerated, the lessee of the rig, had failed to perform, or negligently performed, its non-delegable duty to inspect the tractor-trailer as required by 49 C.F.R. § 1057.4(c), and that this failure or negligence proximately caused the accident and injuries; (3) that Refrigerated, but not Stanford, was independently negligent in violating 49 C.F.R. § 393.48 by not having operative brakes on the rig, which failure or negligence proximately caused the accident and injuries; (4) that both Refrigerated and Stanford were independently negligent in violating 49 C.F.R. § 393.52 by reason of the fact that the rig was incapable of being stopped in time to avoid the collision, and that this failure or negligence was a proximate cause of the accident and injuries; and (5) that there was no valid hold-harmless agreement entitling Refrigerated to indemnity from Stanford. The special interrogatories (Exhibit A) and subsequent questionnaire (Exhibit B) are annexed to this opinion.

On November 30, 1978, the trial court in Babcock entered judgment on the jury's verdict, providing in part:

"It is Ordered and Adjudged that the judgment be entered in favor of the plaintiff Courtland T. Babcock, II, and against defendant Charles Stanford and defendant Refrigerated Transport Co., Inc., Jointly and severally in the amount of $34,000 with the primary responsibility for paying said judgment being that of Refrigerated Transport Co., Inc., and allocation of fault for contribution being as follows: defendant Charles Stanford 20%; defendant Refrigerated Transport Co., Inc. 80%.

"It Is Further Ordered and Adjudged that the judgment be entered in favor of the defendant Hugh F. Wicker and against plaintiff Courtland T. Babcock, II."

(Emphasis added.)

The handing down of a verdict and entry of judgment in the underlying tort case have narrowed the issues which were originally before this court on appeal of the declaratory judgment.

Refrigerated in its briefs on this appeal contended (1) that the question of duty to pay any judgment recovered in the Babcock case was not justiciable; (2) that the district court erred in imposing the primary duty to defend upon Refrigerated; and (3) that even if the issue of duty to pay was justiciable, the district court's order was ambiguous and overly broad in imposing on Refrigerated the primary duty to defend and to pay as to all causes of action asserted in Babcock.14

Refrigerated now concedes that the jury verdict in Babcock has mooted certain of its contentions. First, it concedes that there is no longer any question about the justiciability of the duty to pay issue.15 Motion of the Parties to Supplement the Record at 2. Further, it is conceded that the jury's findings of fact narrowed the controversy relating to Refrigerated's duty to pay by rendering moot that issue as affected by Stanford's potential liability for (a) Respondeat superior, and (b) strict liability.16 Id. Finally, Refrigerated concedes that this court need no longer consider the effect of the district court's declaratory judgment order upon its right to indemnification.17 Id.

The questions which remain in this appeal are the following:

(1) Does the district court's declaratory judgment order erroneously destroy Refrigerated's rights to contribution from Stanford or his insurer for payment of the Babcock judgment?

(2) Does Refrigerated have the "primary" duty to pay the judgment entered in favor of Babcock and against Refrigerated and Stanford?

(3) Does Refrigerated have the "primary" duty to defend the Babcock case on behalf of Stanford and Wicker?

We conclude (1) that nothing in the federal motor carrier laws or in the private agreements in this record affects Refrigerated's contribution rights; (2) that those laws do not impose upon Refrigerated, nor absolve Carolina of, the duty to pay judgments entered against Stanford, Carolina's named insured; and (3) that nothing in the federal requirements places on Refrigerated, nor frees Carolina of, a duty to defend on behalf of Stanford and Wicker.18

The threads comprising the knot of disputed duties in this case originate in three sources: (1) federal law, including the statutes and regulations governing use of nonowned vehicles by motor carriers; (2) state law, including the body of common and statutory law governing duties of care to third parties and duties and rights between master and servant, between insurer and insured, between co-insurers, and between joint tortfeasors; and (3) private contracts (as governed by applicable law), including the trip lease agreement between Stanford (the lessor) and Refrigerated (the lessee), Stanford's insurance contract with Carolina, and Refrigerated's contract with INA.

The federal regulations applicable to the use of leased motor vehicles by motor carriers have their statutory source in § 204(e) of the Interstate Commerce Act, 49 U.S.C. § 304(e) (1977), which authorizes the Interstate Commerce Commission (ICC) to prescribe regulations "with respect to the use by motor carriers (under leases, contracts, or other arrangements) of motor vehicles not owned by them, in the furnishing of transportation of property . . . ." The Act also authorizes the ICC to make regulations assuring that lessees of motor vehicles have full direction and control of, and full responsibility for such vehicles, "as if they were the owners of such vehicles." Id., subsection (2).

Pursuant to this statutory mandate, the ICC regulation governing vehicle leases requires that the lessee undertake in the lease "exclusive possession, control and use of the equipment," and assume complete "responsibility in respect thereto." 49 C.F.R. § 1057.4 (1977).19 In compliance with this regulation, Refrigerated, as lessee, agreed to assume "all liability to . . . the public, and responsibility to the (ICC) . . ." in paragraph 3 of the trip lease in this case.20

The lease also provides that Refrigerated, the lessee, certifies that its authorized representative has inspected the leased equipment (8a). This certification is required by 49 C.F.R. § 1057.4.21

In addition, as a condition of obtaining and retaining an ICC permit, a motor carrier such as Refrigerated, whether renting or owning its vehicles, must comply with § 215 of the Interstate Commerce Act, 49 U.S.C. § 315 (1977),22 to provide "security for the protection of the public." That provision, through the ICC regulations implementing its mandate,23 requires ICC permit applicants to file "surety bonds, policies of insurance, qualifications as a self-insurer, or other securities or agreements . . ." with the ICC. Such assurances of the motor carrier's financial responsibility are to be conditioned to pay, within the limits of coverage, "any final judgment recovered against such motor carrier for (personal injury or property damage) resulting from the negligent operation, maintenance or use" of vehicles operating under the carrier's ICC permit.

Pursuant to these regulations, Refrigerated registered with the ICC as a self-insurer,24 and INA, its insurer, certified its policy to the ICC. ICC rules also prescribe a uniform "Endorsement for Motor Carrier Policies" ("ICC endorsement").25 The endorsement provides that neither other contractual limitations nor violations of the insurance agreement by the insured "shall relieve the (insurance) company from liability hereunder or from the payment of any such final judgment (against the motor carrier-insured), irrespective of the financial responsibility or lack thereof . . . of the insured;" however, the insurer may subsequently proceed against its insured for any payments which the insurer makes under the endorsement, but which it would not otherwise have been required to make. Although the ICC endorsement does not appear in the record in this case, other language in the policy26 may be read as incorporating the endorsement by reference, and the district court so construed the policy (86a-87a).27

The Supreme Court upheld these ICC "responsibility-and-control" regulations governing the operation of nonowned vehicles in American Trucking Associations v. United States, 344 U.S. 298, 73 S. Ct. 307, 97 L. Ed. 337 (1953). There the Court discussed at length the background of abuses which the regulations were designed to remedy, including not only the sharing of limited operating authority under the guise of equipment leases but also the evasion of safety requirements and of financial responsibility for harm to the public. Id. at 303-11, 73 S. Ct. 307.28 In Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., 423 U.S. 28, 96 S. Ct. 229, 46 L. Ed. 2d 169 (1975), the Court reaffirmed this "basic responsibility of the lessee to the public," Id. at 39, 96 S.Ct. at 234, and cited the elimination of "difficulties . . . of fixing financial responsibility for damage and injuries to . . . members of the public" as one of the "significant aims" of the federal rules, Id. at 37, 96 S.Ct. at 234.

We may assume, without deciding, that if Refrigerated, as the holder of the ICC permit, were the only available defendant in this case, it could not escape these significant duties of care and financial accountability To the public which the federal rules, and the contractual undertakings pursuant thereto, impose upon lessees.29 We may also assume, without deciding, that INA, as Refrigerated's certified liability insurer, could not absolve itself of a duty to make the initial payment of compensation to an injured member of the public, in the event that neither Refrigerated nor any other party involved could answer financially for the damage. The district court in this action may have intended to state nothing more than the above two propositions when it declared that "Refrigerated and INA . . . are in that order primarily responsible for defending the Babcocks' suit and for paying any damages the Babcocks might recover" (87a). We agree that these two principles are in accordance with the policy of this court. See Mellon National Bank & Trust Co. v. Sophie Lines, Inc., supra At note 29.

However, the pleadings in this declaratory action do not seek a determination of the duty owed by a motor-carrier lessee and its insurer to the injured public. Rather, we view this case in its present posture as an action to determine where the ultimate financial responsibility for the injury rests, after the injured plaintiff has obtained a judgment against two parties held responsible in fact and in law. In this situation, the pertinent question is whether the federal policy of assuring compensation for loss to the public prevents courts from examining the manner in which private agreements or state laws would otherwise allocate the ultimate financial burden of the injury.

Carolina and Stanford appear to argue in this appeal that a court's analysis should stop with consideration of the ICC regulations and the public policies served thereby.30 We disagree. While a lessee cannot free itself of its federally imposed duties when protection of the public is at stake, the federal requirements are not so radically intrusive as to absolve lessors or their insurers of otherwise existing obligations under applicable state tort law doctrines31 or under contracts allocating financial risk among private parties. Thus, in a declaratory action similar to this one, determining which of two insurers owed primary coverage for liability arising from a leased vehicle's accident, this court rejected the reasoning of a district court which had relied solely upon the "responsibility-and-control" regulations to impose liability exclusively upon the lessee's insurer. Allstate Insurance Co. v. Liberty Mutual Insurance Co., 368 F.2d 121 (3d Cir. 1976). That decision held that where the case is "concerned with responsibility as between insurance carriers," and not with the federal policy of protecting the public, "I.C.C. considerations are not determinative" and a court should consider the express terms of the parties' contracts. Id. at 125.32

In the case before us, we find in particular that neither the federal motor carrier laws nor the (imputed) ICC endorsement nor paragraph 3 of Refrigerated's trip lease transfer to Refrigerated the duties to defend claims properly brought against others or to pay judgments entered against others. 49 U.S.C. § 31533 and 49 C.F.R. § 1043.1(a),34 governing insurance and other assurances of motor carriers' financial responsibility, require only that the carrier give security "to Pay any final judgment recovered Against such motor carrier . . ."; they mention nothing about defense of actions and nothing about payment of judgments recovered against other parties such as lessors. The regulation governing qualification as a self-insurer, 49 C.F.R. § 1043.5,35 requires only that the self-insuring motor carrier establish its ability "to satisfy Its obligations for bodily injury liability . . .," not any other party's obligations. Nor does the ICC endorsement operate to relieve the lessor or its insurer of any ultimate financial responsibility for claims or judgments against them.36

Similarly, 49 U.S.C. § 304(e)37 and 49 C.F.R. § 1057.4,38 requiring "supervision and control" by lessees, are silent on the issues of defense and payment on behalf of other parties. The lease provision in which Refrigerated, as lessee, assumes such supervision and control likewise makes no mention of an undertaking to defend and pay actions against others. In particular, nowhere in the lease does the lessee assume the responsibility to insure the lessor, or to hold the lessor harmless against claims brought against it.39

In sum, since it is not sufficient to look solely to the federal motor carrier requirements or to the lease and insurance provisions pursuant thereto for a determination of the respective duties of insurer and a partially self-insured lessee, it is necessary to examine the allocation of legal obligations which state law imposes, and to examine the insurance contracts to see whether they effectively provide a different allocation of Financial responsibility.

While Delaware law in part governed the duties of care owed to the plaintiff by the alleged tortfeasors in Babcock's diversity suit, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), at this stage of proceedings we are primarily concerned with the effect upon the parties to this appeal of the judgment entered "jointly and severally" against Refrigerated and Stanford.40 As discussed above, under the circumstances of this case, we find nothing in the federal motor carrier laws that would displace any apportionment of legal obligations which Delaware law would otherwise impose upon joint tortfeasors. Specifically, these federal laws and regulations do not affect rights and duties of contribution.41 Thus Delaware's Uniform Contribution Among Joint Tort-Feasors Law42 would apply to the ultimate apportionment of the legal obligation to pay the judgment, as between Refrigerated and Stanford, provided that neither of these parties had relinquished its rights under that statute. However, rights of contribution under the Delaware statute, and insurers' rights of subrogation thereto, may be conditioned upon factual matters not on this record. See, e. g., § 6302(b) and (c); 16 G. Couch, Cyclopedia of Insurance Law § 62:171 p. 577 n.20 (1966). Therefore, the district court on remand should make appropriate findings of fact and any determinations of state law necessary to ascertain how the state law of contribution allocates the legal obligations which arise from the accident.43

We hold only that we find nothing in the federal motor carrier requirements, and nothing in this record on appeal, that would defeat Refrigerated's rights of contribution against Stanford or its insurer.44 Conversely, nothing in our present disposition should be construed to affect the latter parties' contribution rights against Refrigerated or its insurer.3. Terms of the insurance policies under applicable law

The district court's mode of analysis in this declaratory action did not require close examination of the terms of the insurance contracts.45 Nor, of course, was the district court able to analyze the effect upon these parties' obligations of a judgment entered jointly and severally against the lessor and lessee of the tractor-trailer, but not against the driver. Since we have concluded that in a case such as this one the federal motor carrier requirements do not displace rights and duties which the insurance contracts and state law would otherwise create, the next step in resolving this dispute would be an analysis of the terms of the contracts in light of the Babcock judgment and other events which have intervened since the entry of the declaratory judgment in this action.

This court is hampered in construing the terms of the insurance contracts by the lack of any indication in this record or in prior proceedings as to what state law should govern such construction.46 Further, the circumstances of this case are somewhat unusual in that the jury found that the driver (Wicker) was not negligent, but that both lessee (Refrigerated) and lessor (Stanford) were independently negligent. The briefs on appeal do not address the subtler questions that arise in the construction of the policy terms in light of these jury findings. While neither Refrigerated nor Stanford claims to be an insured within the coverage of the other's insurance policy,47 this court has received little guidance for construing the effect of the exclusion clause of the "Truckmen's Endorsement" in the Carolina policy,48 especially as to the driver;49 nor for determining the parties' duties of defense under the terms of the policies50 and under governing state law. Complex questions relating to the "other insurance" clauses51 in the policies also may arise: particularly with regard to other insurance covering a different tortfeasor but the same joint liability,52 to partial self-insurance,53 and to other insurance policies with identical "other insurance" clauses.54

Under these circumstances, in this diversity case, this court will not indulge in the pre-Erie fallacy of looking to some "brooding omnipresence in the sky"55 for a general law governing the interpretation of these insurance contracts. See Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 532, 47 S. Ct. 472, 71 L. Ed. 842 (1928) (Holmes, J., dissenting). See also Mutual Life Insurance Co. v. Johnson, 293 U.S. 335, 339-40, 55 S. Ct. 86, 79 L. Ed. 646 (1934). Nor should we risk adding yet another inconsistent judicial interpretation of the terms of art on which insurers rely, See Insurance Co. of North America v. Continental Casualty Co., 575 F.2d at 1072, by plunging into a detailed exegesis of these contracts with only schematic indications of the parties' own understanding thereof. Therefore, we think it appropriate that the district court on remand make the determinations of fact and law necessary to ascertain what law applies to the analysis of these contracts, and to construe, under applicable law, ambiguous or mutually exclusive provisions to the extent necessary to determine what duties of payment and defense the parties to this action undertook by contract.56

We conclude that nothing in the federal motor carrier requirements, the trip lease, or the imputed ICC endorsement to Refrigerated's insurance policy would alter any party's rights or duties of contribution. In particular, we make clear that those provisions do not impose on Refrigerated, as lessee, the status of an insurer with respect to Stanford, the lessor.57 Since rights and duties of contribution may rest upon facts outside this record and upon issues of local law, we leave such determinations to the district court on remand.

We conclude that nothing in the federal motor carrier requirements, the trip lease, or the imputed ICC endorsement absolves Stanford and Carolina of any duty they might otherwise have to pay judgments entered against Stanford. Therefore, we will affirm the judgment of the district court insofar as it imposed a duty upon Refrigerated and INA to pay judgments entered against Refrigerated, but will remand for a determination whether the terms of the Carolina policy, in conjunction with the terms of the INA-Refrigerated contract, succeed in converting Carolina to a mere excess insurer.58 If the district court should determine that Carolina is in fact a primary insurer as to Stanford's liability under the Babcock judgment, it will also have to determine how payment of that judgment shall be allocated among the parties to this action. In this event, if the Delaware contribution statute is operative, it appears likely that the eminently sensible outcome of this action would be that Carolina pay 20% Of the $34,000. Babcock judgment for which its insured was found culpable, while INA and Refrigerated pay the 80% For which Refrigerated was found culpable.59 However, the district court may determine that a different apportionment of payment is required by the contracts or by governing law in light of any factual determinations it makes and after ascertaining the positions of counsel.60

We conclude that nothing in the federal laws, the trip lease, or the imputed ICC endorsement alters otherwise existing duties to defend. Therefore, we leave for further determination on remand, or to agreement among the parties, the question of what duties the insurance contracts or governing state law imposed for defending claims against the driver, Wicker, and against the lessor, Stanford.

The judgment of the district court is vacated and the case is remanded for further proceedings in accordance with this opinion,61 each party to bear its own costs in this court.

I have prepared a set of questions that should assist you in rendering your verdict. The original or official copy of the questions will be handed to the Foreman who by tradition of this Court is Juror number 1. It is the original and official copy merely because it is the Foreman's copy. This copy should be signed by each of you after you have unanimously agreed upon the answer to each question which requires an answer. An extra copy of the questions will be handed to each juror and is merely for your convenience in considering your verdict.

I shall now read the first set of questions, adding a note of explanation wherever I think it will be useful to you. The questionnaire instructs you to "Answer the following questions in the order in which they are hereby presented." It is important to follow the order in which the questions are presented because some of the questions later on the questionnaire need not be answered if certain questions are answered in certain ways earlier in the questionnaire. So, although you should certainly read clear through the questionnaire before you start to answer any of the questions, I strongly urge that you take up the questions in the order in which they are presented. The questions are as follows:

1. Based upon the evidence and the instructions of law as given to you by the Court, do you find that plaintiff is entitled to damages from defendants or any of them?

(If your answer is no, proceed no further. If your answer is yes, proceed to answer the following questions.)

2. How much damages do you award to plaintiff?

$34000

3. How do you allocate the fault as among defendant Wicker, the truck driver, defendant Stanford, the truck owner and lessor, and defendant Refrigerated Transport Inc., the lessee? In answering this question, you should not consider any claim for indemnification as between Stanford and Refrigerated Transport, Inc.

Wicker                         0 %
                             -----
Stanford                      20 %
                             -----
Refrigerated Transport Inc.   80 %
                             -----
    Total                    100 %
                             -----

You will now return to the jury room to begin your deliberations. When you reach agreement, you are to fill out and sign the question sheet. The questions will be read in open court when you return with your verdict and the Foreman will read your answers aloud. Depending upon your answers to these questions, you may be asked to answer additional questions.

4. Has the plaintiff, Courtland T. Babcock, II, and/or the defendant, Refrigerated Transport Co., Inc., proven by a preponderance of the evidence that (a) the involved tractor-trailer had a defect in the braking system at the time the individual defendant, Charles Stanford, leased it to Refrigerated, and (b) the accident and plaintiff's claimed injuries were proximately caused by that defective condition?

(Yes or No)

5. Has the plaintiff, Courtland T. Babcock, II and/or Charles Stanford proven by a preponderance of the evidence that Refrigerated failed to perform its non-delegable duty to inspect the tractor-trailer as required by 40 CFR § 1057.4(c), or negligently performed that inspection, and that Refrigerated's failure or negligence was a proximate cause of the accident and the plaintiff's claimed injuries?

(Yes or No)

6. Has the plaintiff, Courtland T. Babcock, II, proven by a preponderance of the evidence that Refrigerated, Hugh Wicker, or Charles Stanford was independently negligent in violating a federal regulation (49 CFR § 393.48) by not having operative brakes on the tractor-trailer and that that failure or negligence was a proximate cause of the accident and plaintiff's claimed injuries?

Answer:  Refrigerated:      Yes
-------                 -----------
                        (Yes or No)
         Stanford:           No
                        -----------
                        (Yes or No)
         Wicker:             No
                        -----------
                        (Yes or No)

7. Has the plaintiff, Courtland T. Babcock, II, proven by a preponderance of the evidence that Refrigerated, Hugh Wicker or Charles Stanford was independently negligent in violating the federal regulations (49 CFR § 393.52) by reason of the fact that the tractor-trailer was not capable to being stopped in time to avoid the collision, and that that failure or negligence was a proximate cause of the accident and plaintiff's claimed injuries?

Answer:  Refrigerated:      Yes
-------                 -----------
                        (Yes or No)
         Stanford:          Yes
                        -----------
                        (Yes or No)
         Wicker:             No
                        -----------
                        (Yes or No)

8. Has the plaintiff, Courtland T. Babcock, II, proven by a preponderance of the evidence that the individual defendant, Hugh F. Wicker, was guilty of negligence in failing to maintain proper control of the tractor-trailer or in driving carelessly and that such negligence proximately contributed to the cause of the accident and plaintiff's claimed injuries?

(Yes or No)

9. The Court has already ruled that Refrigerated is responsible for any negligence of Mr. Wicker. If your answer to Question 8 is "yes," do you find that Mr. Wicker was also acting as the servant or employee of Charles Stanford at the time of the accident?

(Yes or No)

10. Do you find that there was a valid hold harmless agreement such that Refrigerated is entitled to indemnity or reimbursement from Stanford:

(Yes or No)