ON TRACK WITH RAILWAY CLAIM SERVICES, Inc.

Volume 7 Issue 4                                                                  APRIL, 2002

 

RAILWAY CLAIM SERVICES, INC.          Our 14th Year of Service

MESSAGE FROM THE EDITOR

THE "STELLA" AWARDS

TRIVIA AND HUMOR

POINTS TO PONDER

THIS AND THAT ACROSS THE COUNTRY

QUARTERLY TOPIC

POINTS OF LEGAL INTEREST

RCSI INFORMATION

FROM THE EDITOR:

The first month of the second quarter is April, primarily noted for April Fool Day and IRS day.  If some wannabe comedian does not get me the first of the month, I can always count on the IRS getting me the middle of the month.   Sometimes I get these two occasions confused with each other due to the duping similarities; however, the amount of money I pay in taxes is no joking matter.  I have asked myself, "What's a better form of government than ours?"

We have to eliminate dictatorships since no one wants to be subjected to brutality and total control.  There's always Socialism and Communism.  Both may appear to be positive toward pursuing equality for the entire population of a country; however, history has proven that appearance to be wrong.  There were once numerous communist countries, but there are only four main ones remaining – China , Vietnam , North Korea and Cuba . 

Nine Hundred million Chinese's main transportation mode is bicycles, whereas the majority of American families have two or more vehicles.  Strike China from the list.  Vietnamese live in grass huts and consider a bicycle a luxury, whereas the majority of Americans have much better constructed houses.  Scratch Vietnam .  North Korea plays second fiddle to South Korea 's prosperity and South Korea cannot approach America 's prosperity.  Throw out North Korea .  Cuba is noted primarily for their baseball team, cigars and citizens risking their lives to get to America .   Forget Cuba .  Heck, the only contribution Cuba ever made to America was Desi Arnez, who subsequently gave us "I Love Lucy."

Islam/Arabs are in control of a lot of countries, whereas in America we have every religion from atheists to charismatic, with a lot of different denominations somewhere in between those two choices.  Some Arabic and Islamic countries have wealth, but it is usually confined to a select few and they still have to live in the sand with no ocean front property bordering their abodes.  Besides, too much sand and I become bilious and anomaly.  If I cannot walk a few feet on sand and wade into the ocean I want no part of that country.  With no disrespect intended toward any religious faith, forget these countries' governments where you are either born into power, buy your way into power or shoot your way into power.  Besides, in my old age one of the few pleasures I get these days is having the opportunity of admiring our beautiful ladies in this country.  I see enough robes in a courtroom.

While America is a Republic, we generally refer to it as a democracy.  Whatever we are, pros and cons and including taxes, I believe our system is the best and most proven one that can work for most everyone.   We have a system where a person's future and accumulations can be greatly determined by their own dreams, desires and diligence; however, freedom to choose and make independent decisions relating to religion, spouse choices, education pursuits, work opportunities and so forth provides the most important kind of wealth to each of us, at no cost and with no strings attached.  The material items obtained are icing on the cake.

God bless America and our military as they daily walk in harms way on our behalf.

John 5:24 – Verily, verily, I say unto you.  He that heareth my word, and believeth on him that sent me, hath everlasting life, and shall not come into condemnation; but is passed from death unto life.  

THE "STELLA" AWARDS  (AKA "BELIEVE IT OR NOT" VERDICTS)

The "Stella" award is derived from the famous McDonald's hot coffee suit brought by 81 year old Stella Liebeck of New Mexico, who suffered 3rd degree burns to her legs, groin and buttocks after spilling a cup of coffee on herself, resulting in a $2.9 million dollar verdict (later reduced).  The ridiculous cases below are all viable candidates for this award.

1)   January, 2000:  Kathleen Robertson of Austin , Texas was awarded $780,000 by a jury of her peers after breaking her ankle tripping over a toddler who was running amuck inside a furniture store.  The owners of the store were understandably surprised at the verdict, considering the misbehaving child was Ms. Robertson's son.

2)   June, 1998  A nineteen year old Carl Truman of Los Angeles won $74,000 and medical expenses when his neighbor ran over his hand with a Honda Accord while Truman was trying to steal the hubcaps off his neighbor's vehicle.  Apparently Mr. Truman did not notice his neighbor at the wheel of the vehicle before attempting his heist.

3)   October 1998:  Terrance Dickson of Bristol , Pennsylvania was leaving a house he had just finished robbing by way of the garage.  He was not able to get the garage door to go up because the automatic door opener was malfunctioning.  He couldn't re-enter the house because the door connecting the house and garage locked when he pulled it shut.  The family was on vacation.  Mr. Dickson found himself locked in the garage for eight days.  He subsisted on a case of Pepsi he found and a large bag of dry dog food.  Mr. Dickson sued the homeowner's insurance claiming the situation caused him undue mental anguish.  The jury agreed to the tune of half a million dollars.

4)   October, 1999:  Jerry Williams of Little Rock , Arkansas was awarded $14,500 and medical expenses after being bitten on the buttocks by his next door neighbor's beagle.  The beagle was on a chain in the owner's fenced-in yard, as was Mr. Williams.  The award was less than sought because the jury felt the dog may have been provoked by Mr. Williams, who was shooting the dog repeatedly with a pellet gun when the dog bit him.

5)   May, 2000:  A Philadelphia restaurant was ordered to pay Amber Carson of Lancaster , Pennsylvania $113,500 after she slipped on soft drink and broke her coccyx.  The beverage was on the floor because Ms. Carson threw it at her boyfriend 30 seconds earlier during an argument.

6)   December, 1997:  Kara Walton of Claymont , Delaware successfully sued the owner of a nightclub in a neighboring city when she fell from the bathroom window to the floor and knocked out her two front teeth.  This occurred while Ms. Walton was trying to sneak into the nightclub through the window in the ladies room to avoid paying the $3.50 cover charge.  She was awarded $12,000 and dental expenses.

7)   Just so you know that cooler heads do occasionally prevail, Kenmore, Inc., the makers of Dorothy Johnson's microwave, were found not liable for the death of Mrs. Johnson's poodle after she gave it a bath and attempted to dry the poodle by putting the poor creature in her microwave for, "just a few minutes, on low."  The case was quickly dismissed.

Pending for future Stella consideration is another McDonald's lawsuit.  This information was furnished by a McDonald's executive.  Seems the plaintiff received a call at work from his wife who informed him that she was experiencing the exact right conditions to be impregnated.  Her husband leaves work, but before going home decides he wants a milk shake from McDonald's.  For whatever reason, he spills the cold milk shake between his legs, which caused him to be unable to perform when he got home; hence, the suit against McDonald's for the baby that won't be born.    Personally, I have no sympathy for any man that puts a milk shake ahead of this plaintiff's reason to get home to his anxiously awaiting wife in a timely fashion.

POINTS TO PONDER

I am a great believer in luck and the harder I work the more I have of it.   Stephen Leacock, Humorist

He who has one for the road gets a trooper for a chaser.   Unknown

No life is so hard that you can't make it easier by the way you take it.   Ellen Glasgow, Writer

Too many people miss the silver lining because they're expecting gold.   Maurice Setter

Never believe that a few caring people can't change the world.  For, indeed, that's all who ever have.  Margaret Mead, Anthropologist

Let us not look back in anger or forward in fear, but around in awareness.   James Thurber, Humorist

Love and time, those are the only two things in all the world and all of life, that cannot be bought, but only spent.Gary Jennings, Writer

The greatest weakness of most humans is their hesitancy to tell others how much they love them while they're still alive.O. A. Battista, Scientist and writer

When you arise in the morning, give thanks for the morning light, for your life and strength.  Give thanks for your food and the joy of living.  If you see no reason for giving thanks, the fault lies with yourself.   Tecumseh, Shawnee Chief

You cannot live a perfect day without doing something for someone who will never be able to repay you.John Wooden, Retired college basketball coach

I expect to pass through this world but once.  Any good therefore that I can do, or any kindness or abilities that I can show to any fellow creature, let me do it now.  Let me not defer it or neglect it, for I shall not pass the way again.Williams Penn, Founder of the state of Pennsylvania

Water, fertilize and put some love into your grass to insure a greener growth because the grass is not always greener on the other side of the fence and, besides, there could even be a bull over there.  Me

Family, friends and freedom a rich man makes, while fools think money is all it takes.   Me

TRIVIA & HUMOR   

Note:   Answer to last months question as to why Kamikaze pilots wore helmets:  Their helmets were soft.  The cockpits were often open.  They wore them to properly dress for the battle occasion and to protect their head from the adverse weather conditions

In the olden days baths were few and far apart.  The man of the house went first, then the other men in the family, followed by the women, children and babies, in that order.  By the end of the bath the water was so dirty you could not see anyone submersed in it; hence the saying, "Don't throw the baby out with the bath water."

Houses had thatched roof-thick straw-piled high, with no wood underneath.  It was the only place for animals to get warm, so all the dogs, cats and other small animals (mice, bugs) lived in the roof.  When it rained it became slippery and sometimes the animals would slip and fall off the roof; hence the saying, "It's raining cats and dogs."

There was nothing to stop things from falling into the house; hence a bed with big posts and a sheet hung over the top afforded some protection.  That's how canopy beds came into existence.  Only the wealthy had something other than dirt for floors; hence the saying, "dirt poor."

England started running out of places to bury people, so they dug up coffins and placed the remains in a "bone house" to be able to re-use the grave.  When opening these coffins, 1 out of 25 had scratch marks on the inside and they realized they had been burying people alive, so they started tying a string on the wrist of the corpse, lead it through the coffin and up through the ground and tied it to a bell.  Someone would have to sit out in the graveyard all night ("The graveyard shift") to listen for the bell ("Saved by the bell") and if the bell rang the occupant was considered a "dead ringer."

More than 50% of the people in the world have never made or received a telephone call.

Sneezing too hard and you can fracture a rib.  Suppress and you can rupture a head or neck blood vessel and die..

A duck's quack does not echo and no one knows why.

The cigarette lighter was invented before the match.

Wearing headphones for just an hour will increase the bacteria in your ear by 700 times.

Rats multiply so quickly that in 18 months two rats could have over a million descendants.

If the government has no knowledge of aliens, then why does Title 14, Section 1211 of the Code of Federal Regulations, implemented on July 10, 1969 , make it illegal for U.S. citizens to have any contact with extraterrestrials or their vehicles?

A shrimp's heart is in their head.

THIS AND THAT ACROSS THE COUNTRY               

ASLRRA ANNOUNCES 2001 SAFETY AWARDS AND STATS – 1 to 10,000 employee hour winners:  Gold – Texas South-Eastern Railroad Co.  Silver – Penn Eastern Rail Lines, Inc.  Bronze – Great Miami & Scioto Railway Co.

Copper – Nash County Railroad .  10,001 to 50,000 employee hour winners:  Gold Indiana Southern Railroad Co., Inc.

Silver – Apache Railway Co.  Bronze – Georgia NE Railroad Co.  Copper – South Carolina Central Railroad Co., Inc.

50,001 to 250,000 employee hour winners:  Gold – New England Central Railroad.  Silver – Indiana & Ohio Railway.  Bronze – Dallas , Garland & NE Railroad.  Copper – Kiamichi Railroad Co., LLC.  250,001 and above employee hour winners:  Gold – Acadiana Railway Co.  Silver – Paducah & Louisville Railway Co.  Bronze – Buffalo & Pittsburg Railroad, Inc.  Copper – Iowa Interstate Railroad.  Switching and Terminald Railroads – Gold – Belt Railway Co. of Chicago .  Silver – River Terminal Railway Co.  Bronze – Terminal Railroad Assoc. of St. Louis .  Copper – Indiana Harbor Belt Railroad Co.

Fatalities are down from 6 in the year 2000 to 1 in 2001.  Other likewise comparisons:  Non-fatal injuries are down from 1,039 to 845.  Employee days absent are down from 16,897 to 10,503.  Train accidents are down from 434 to 418.  And employee hours are down from 33,935,393 to 32,296,826  FRA's rate is down from 6.16 to 5.24

Wisconsin & Southern Railroad Company's Grade Crossing Implementation – WSOR asked each township, village, city, and municipality to install stop signs at all passive crossings that were only protected by crossbucks.  Of the 450 crossings on the WSOR system, 420 now have stop signs and 18 have yield signs.  That represents the vast majority and the remaining 12 crossings are under consideration for the program.  As of December 14, 2001 , the WSOR had not sustained an accident at any of the crossings and CEO William E. Gardner is confident the program will save his railroad a lot of money over a period of time.  But, more importantly, it will save lives and personal injuries from occurring.  Mr. Gardner has high hopes of WISDOT including the proper language for these warning symbols into the Manual on Uniform Traffic Control Devices.  Mr. Gardner has graciously given his permission to print his phone number and email for anyone who would like to obtain more information.  Phone number is (414) 438-8820, ext. 212 and email is bgardner@wsorrailroad.com

ASLRRA Meetings – Annual Meeting and Exhibition, April 28-30, 2002 , World Center Marriott, Orlando , Florida .  Contact Executive Director-Membership Services Kathy Cassidy, (202) 585-3443 or email kcassidy@aslrra.org.

Eastern Region Meeting, October 13-15, 2002 , Hyatt Regency Hotel, Baltimore , Maryland ,  For more information contact ASLRRA at (202) 628-4500.

Country's Ten Highest 2001 Verdicts – 1)  $3 billion, tobacco verdict, California .   2)  $1 billion, land contamination, Louisiana .   3)  $480 million, private airplane crash, Florida .   4)  $312.8 million, nursing home, Texas .   5)  $256 million, police auto crash, Colorado .   6)  $116 million, intellectual property theft, Virginia .   7)  $114.9 million, medical malpractice, New York .   8)  $108.2 million, inheritance dispute, Texas .   9)  $107.8 million, medical malpractice, New York .   10)  $94.5 million, real estate development, California .

EPA Provides  Invironmental Screening Checklist and Workbook For Short Lines –EPA's Office of Compliance, through various meetings with industry representatives, facility owners, and technicians, determined there is a need for clear information for facilities to help them attain or remain in compliance with applicable federal environmental regulations.  To obtain checklist or for more information, call TERC at 1-888-459-0656 or visit their website address, http://www.transource.org. 

FRA'S New Address  - The Federal Railroad Administration's new address is 1340 Braddock Place, Suite 200 , Alexandria , Virginia , 22314 .

Rail Purchases – On December 29, 2001 Stillwater Central Railroad closed the purchase of 120 miles of track from the BNSF that runs between Oklahoma City and Long in southwest Oklahoma .

The Western New York & Pennsylvania Railroad (WNYP) has acquired a 42-mile line from the Northwest Pennsylvania Rail Authority (NPRA) in a transaction valued at more than $1.9 million.  WNYP officials said the Meadville-to-Hornell line will be the shortest and most direct route between NS' Conway Yard in Pittsburg and New York 's Southern Tier.

QUARTERLY TOPIC   -   "The Fine Art Of Negotiations"       

Most Claims oriented folks think they can negotiate.  I am no exception.  Whether or not I can negotiate claims and lawsuits successfully would probably have to be confirmed by my opponents and I don't expect that to happen.  If I don't know what I am doing in that regards it is certainly not for lack of proper training in my younger days as a claim agent for the L&N Railroad or the 30-plus years experience handling claims and lawsuits with some of the toughest, most qualified plaintiff's attorneys in this country.

L&N District Claims Agent Conrad Buffington was my mentor in many ways but more so in attempting to teach me the fine art of negotiations.  Now in his mid-eighties, I visited with "Mr. Buff" right before Christmas last year.  I pen this section of the newsletter as my way of saying thanks and to acknowledge how much he has meant to me in so many ways all these years.

Negotiations can be broken down into two categories – direct and with an attorney.

Handling negotiations directly with a claimant starts from the inception of the incident.  Primarily, it is our responsibility to gain the claimant's trust.  If that's not accomplished, chances are we will never have the opportunity to discuss a settlement.  We all know that it is extremely difficult to hold a claim in line for a direct settlement; however, if trust is established it certainly increases our chances.

Having gained the claimant's trust, it behooves us to adhere to it.  A fair and reasonable settlement "range" consistent with the facts and injuries should be placed on the claim and an offer made within that range.  Normally, it is prudent to begin at the low range in case the claimant has higher expectations, which leaves room to maneuver.  The goal should never be to settle a direct claim for the least amount possible, but to settle it for the fairest amount possible and not to hesitate if you have to pay the high side of your settlement evaluation.

Handling negotiations with an attorney is a whole different ball game.  It is not always possible to negotiate in person with an attorney.  In fact, most of the time we are negotiating via letters, phone or email; however, face-to-face negotiations, especially the first time or two, is of more benefit than the other modes.  Facial expressions, motions, emotions and surroundings can play an important role in settlement discussions.  Poker players know this.  Never jump right into discussing the claim.  Establish as much rapport as you can by discussing things of interest to the attorney or things you might have in common.  If ice fishing, you cannot catch any fish until you "break the ice."

I have a few rules I try to follow in negotiating with an attorney and they are as follows:

      1.     There is always an exception to every rule.  In other words, disregard any rule if the occasion merits doing so.

      2.     Make the first offer and make it well within your settlement range/authority.  It seems the primary means for a lot of defendants in opening settlement discussions are to ask for a demand.  Generally, I don't subscribe to that philosophy.  Why not?  Well, it could be construed by the opposition that I am asking them to evaluate the case for me and I have no idea what I am doing.  That may be true, but I don't want them to know that.  I prefer evaluating my case based on a good investigation, the facts of such, injuries and specials, and then make an offer at the bottom rung of my evaluation/range ladder.  Additionally as we all know, the opposing attorney's initial demand is normally several times a defendant's evaluation, so why start off in the stratosphere when you can begin the journey on earth.  Besides, asking for a demand violates my next rule.

       3.   Stay on the offense.  In some sports you can score on a defensive play, but it is easier to score when you're on offense.  That's my feeling regarding negotiations.

       4.   Show your "but" tactic.  In a case where most issues are against me, I pick a positive issue to discuss.  No matter what the attorney throws at me I come back with, "Yeah, but……." and repeat that one plus issue over and over.  If nothing else, it keeps me from having to set up housekeeping on the defense.

       5.   Never chase a climbing squirrel.  Most negotiations go back and forth with offers.  Devise means of attempting to solicit more than one offer from your opposition before raising your offer.  Example:  "I'll recommend meeting you halfway if you'll give me that as an offer or I'll consider something else closer to my offer."  May sound silly, but sometimes it works.   True negotiations do not begin until we have opposing counsel down to our authority.  When there is no legitimate reason for an attorney to all of a sudden go up in his demand, I close the negotiations because I never chase a climbing squirrel.  There's no future in it and I'm afraid of heights.

The claims field is rewarding and challenging.  It reminds me of that old adage, "Jack of all trades, master of none."  One has to wear several different hats, i.e., psychiatrist, lawyer, private investigator, medicine, salesman, etc.  For me, the greatest benefit of the profession has been having the opportunity to work with some of the finest defense attorneys and butt heads with some of the most capable plaintiff attorneys in the country.  I send my best to each of you.

POINTS OF LEGAL INTEREST                     

MarcellinoTrujillo v. Burlington Northern and Santa Fe Railway Company, U.S. District Court of Colorado , Case No. 00-CV-9263.  Plaintiff alleged back injury while attempting to align a drawbar.  Liability alleged was poor maintenance of drawbar, improper training and a road locomotive was used instead of a switching locomotive.  Railroads countered with violation of safety rules by plaintiff.  Before trial, the court ruled that the drawbar was not defective so the Safety Appliance Act did not apply.  The jury awarded $22,500 and reduced it by half due to 50% negligence attributed to the plaintiff.  The defendants were also awardec costs of approximately $5,600.00

Public/Private Crossings, Jeff Langemo v. Montana Rail Link.   Supreme Court of Montana , Case No. 01-052.  An ATV collided with a train at a private crossing.  Accident occurred on the Montana Rail Link at Helena , Montana .  Plaintiff had an agreement for use of the crossing.  MRL admitted the train crew did not sound the whistle which had been their past practice as well as the previous owner of the rail, BNSF. The trial court agreed that the whistle did not have to be sounded and statute MCA 69-14-562(7) was not violated and confirmed their finding through MCA 60-1-1-3(19); however, the Montana Supreme Court disagreed with the reasoning and reversed the decision.  Their basis was that from the 1873 adoption of the whistle statute and this incident did the Legislature insert the word "public" so as to restrict application of the whistle statute.

Starbucks Sees Stars In Samperisi vs. Starbucks, State Supreme Court, Manhattan , New York .

A jury of 6 women awarded Dawn Samperisi $4.6 million, reduced by 25% for contributory negligence, net verdict $3.5 million.  While a Starbucks employee was demonstrating the use of a machine, steam caused it to blow apart causing first and second degree burns to plaintiff's hand, resulting in reflex sympathetic dystrophy, a nervous system disorder that left her unable to use the hand.

Mahoney vs. Norfolk Southern Railway , U.S. District Court for the Southern District of Indiana. 2001 Westlaw 1386086 (S.D. Ind. 2001) grants summary judgment in crossing accident.   Claims of negligence against the crew in the operation of locomotives and failure to sound the whistle lacked probative value and was inadmissible, in part because the driver testified in his deposition that he "did not recall hearing any whistle."

Sandoval vs. Northeast Illinois Regional Commuter Railroad Corp., 2001 Westlaw 1298863 (7th Cir. 2001) upheld the district court's dismissal involving a 15-year old boy who sustained an amputated leg when an Amtrak train struck him on a trestle owned by the Burlington Northern.  Argument was made that the boy was a trespasser and there was no willful or wanton conduct on the part of the defendants.  The courts agreed.

Ward vs. CSX, Jefferson County, Ala., Circuit Court, Case No. 00-2416 results in $34.5 Million Verdict; however, $14 Million settlement under pre-trial high-low ($14 Million high and $7 Million low) agreement.  While working as a long time bridge foreman in Gulfport , Miss. , Plaintiff fell 17 feet from a bridge.  He was the only one on the gang not wearing a safety harness.  Plaintiff argued that CSX told him a harness would be of no help since he weighed over 300 pounds, but CSX refuted and said Plaintiff should have been wearing the harness.  Plaintiff suffered devastating injuries – C5 guadriplegic and both legs amputated.

Estelle vs. Union Pacific Railroad Company, U.S. District Court, Denver , Colorado , Case No. 00-CV-3688, resulted in defense verdict on both the FELA and LIA complaints.  Suit brought by female locomotive engineer who was sexually assaulted and beaten inside a locomotive at the defendant's yard.  Plaintiff alleged locomotive door was defective because it would not lock, inadequate lighting/security and lack of fencing around the yard.   UP argued otherwise, that fencing was not feasible to size and length of yard, adequate patrol of yard through in-house "neighborhood watch" program, disputed the allegation that the door would not lock and pointed out that this was the first assault ever at this location.

RCSI welcomes your input.  If you have any questions or comments of interest to our industry, please contact either Dave Gardner at (731) 967-1796 or FAX your message to (731) 967-1788 or Mike Redden at (615) 754-0518 or FAX your message to (615) 758-3483.

Editor's Note:   If you prefer to receive future editions of this newsletter via email, please send an email with that request.  Email distribution is quicker and saves postage and handling.  Mike Redden

Visit the Railway Claim Services, Inc. webpage.  It’s located at www.railway-claim-services.com

Railway Claim Services, Inc. is the recognized leader in independent railroad claims management, which includes investigation, negotiations, and all those things in between.  If RCSI is not already a partner in your loss control and claims management program are you accepting too much risk?

Railway Claim Services, Inc.  52 South Main Street     Lexington , Tennessee   38351

(615) 754-0518                FAX (615) 758-3483    ----      Email –  mike_redden@railway-claim-services.com

800-786-5204                    FAX (731) 967-1788    ----                or dave_gardner@railway-claim-services.com