1998 Third Quarter Release

ON TRACK WITH
RAILWAY CLAIM SERVICES, Inc.
Volume 4 Issue 3                          3rd Quarter, 1998

 

RAILWAY CLAIM SERVICES

10 Years of Service

www.railway-claim-services.com

Thanks to everyone who has visited our webpage. We have plans to add many new features to this site, one of which is a weekly safety presentation, complete with attendance sheets and available for download. As you might expect, this is a pretty labor intensive undertaking, so please bear with us during this development.

THE DOCTRINE OF ESTOPPEL

The doctrine of estoppel is properly invoked in certain instances by employers when employees seek a return to service following assertions of incapacity, or settlements, made in connection with the Federal Employees’ Liability Act.

What does this mean and how does it apply to our day-to-day operations? At RCSI, our primary function is to handle the claims against our clients to conclusion. In serious employee claims, this often takes into consideration the fact that the injuries sustained by the employee may be such that he/she is incapable of returning to gainful employment with the railroad. This is verified by medical examinations and the proclamations of the employee. If the claim is litigated and goes through the trial process, this is further verified by court testimony. A problem could then arise on the basis of two scenarios. 1) The claimant goes on a spending bender, spending the bulk of his settlement and finding himself near broke and unemployed. 2) A jury rejects his claim and returns a defense verdict. In both of these two scenarios, the claimant suddenly finds himself missing the regular paycheck to which he had been so accustomed in the past. He will usually then either reapply for reinstatement to his old job, or file a claim through his union to be reinstated to his old job. Many carriers, when faced with this situation, capitulate simply to avoid what they fear could result in a unwinnable labor dispute. Nothing could be further from the truth. There is no dispute. Once a claimant makes a claim of permanent disability, either through his own testimony, the testimony of his doctor, or the pleadings of his attorney, he is bound by this. The doctrine of estoppel holds that a person will not be permitted to assume inconsistent or mutually contradictory positions with respect to the same subject matter in the same or successive actions. That is, a person who has claimed relief from an adversary by asserting and offering proof to support one position may not be heard later, in the same or another forum, to contradict himself in an effort to establish against the same party a second claim or right inconsistent with his earlier contention.

At RCSI, we most often see this occur following litigation in which a defense verdict is won, or in lawsuits in which the plaintiff in given a smaller award than he had anticipated. The claimant will go to his doctor and will have been found to have miraculously recovered from his earlier injuries. This is not an exaggeration. The actual wording "miraculous recovery" has often appeared in medical reports for these individuals, and most of the time, it is the same doctor that disabled them in the first place. The fact that they have experienced this miracle is wonderful news for everybody, but it has absolutely no bearing on their employment status. They had claimed permanent disability and that was a focal point in the resolution of their claim, whatever the outcome. There is no basis for reinstatement. For additional information concerning this, please refer to Minneapolis RR v. Rock, 410 U.S. 413; Scarano v. Central Railroad of New Jersey, 203 F. 2d. 510; Public Law Board No. 1660, Award 21; Public Law Board No. 3001, Award 2; National Railroad Adjustment Board First Division Award 6479; Second Division Award 12969; Third Division Award 32291; or call RCSI.

UNEMPLOYMENT & SICKNESS BENEFITS

The maximum daily benefit rate payable for claims under the Railroad Unemployment Insurance Act (RUIA) increased from $43.00 to $44.00 in the new benefit year which began July 1, 1998. Benefits are normally paid for the number of days of unemployment or sickness over four in a 14 day registration period, so maximum benefits for biweekly claims now total $440.00. During the first 14 day claim period in a benefit year, benefits are payable for each day of unemployment or sickness in excess of seven, rather than four, which provides a one week waiting period. To qualify for normal railroad unemployment or sickness benefits, an employee must have had railroad earnings of at least $2,225 in calendar year 1997, not counting more than $890.00 for any one month.

POINTS OF LEGAL INTEREST

This has been a regular feature of our newsletter from the first issue. In the past, it has consisted of summaries of interesting cases. For this issue, we decided to look at some particular issues in which defense counsel has had success. First of these involves unreliable flashers at crossings. This is a particularly touchy subject. Nothing, it seems, aggravates the motoring public more than being forced to stop at a railroad crossing by an errant crossing gate. Being stopped by errant flashing crossing lights is perhaps a second cause for aggravation. Plaintiff’s counsel even has a name for this. They call it "Desensitization" and claim that a history of prior malfunctions lessens a motorist’s duty to obey these warnings. It just ain’t so! Please refer your defense counsel to the following cases; Ayoub v. NRPC, 76 F. 3d 794 (Sixth Circuit, 1996); Kramlick v. Conrail, et al., May 1998; and Hummell v. Toledo, Peoria & Western Railway, Fourth District of Appeal, November, 1997. These ruling hold that the evidence of prior malfunctions of warning signals at a railroad crossing is irrelevant so long as the signals functioned properly at the time of the accident.

Item #2 concerns the extra hazardous crossing. A familiar beast. Plaintiff’s counsel would have us believe that 99 44/100% of all crossings should bear this designation. The extra hazardous crossing is one whose very existence constitutes a "trap" requiring extraordinary measures on the part of the railroad to insure the safety of the motoring public. Some defense attorneys have allowed themselves to become complacent and rely exclusively on the now familiar Easterwood decision as their response to this attack. The plaintiff’s bar is becoming ever more creative in seeking to circumvent this defense. One particular tactic now showing up is to bring in a "track maintenance and classification expert" to testify that the track was improperly classified given its physical condition, and that the train speed exceeded the FRA limit which would have been applicable had the track been properly classified. Another tactic is to bring in one of the railroad’s employees to testify that the train crews were aware of the extra hazardous nature of the crossing and that they had repeatedly requested management to be allowed to stop and flag the crossing. Some of these battles have been fought and won. Some are now in the appeals process. I will list the Easterwood cite again, as well as a couple of others that may help your counsel prepare for the next field of battle. CSXT v. Easterwood, 507 U.S. 658 (1993); Perry v. Denver and Rio Grande Western Railroad, Fourth Judicial District, Utah County, October, 1997;Springston v. Conrail, 1997 US App Lexis 32276, November 19, 1997. While looking at these, also of interest might be Killen v. New York Central RR, 232 N.Y.S. 76. This particular case involved what is known as the "occupied crossing" charge. At crossbuck only crossings, the presence of a train on the crossing at night, whether stationary or moving is often referred to as a trap due to the lack of reflectorization on the cars. The "occupied crossing" charge states that when a train is lawfully occupying a crossing which is adequately marked with signs, there is no duty on the part of the railroad to provide additional warnings.

SOAPBOX - In our last issue I mentioned that I hoped to persuade Mr. Lowell S. (Jake) Jacobson, Railway Age’s 1994 Railroader of the Year and Vice President and General Manager of the Copper Basin Railway, Inc. to contribute an article to an upcoming newsletter. I recently received a letter from Mr. Jacobson. While I would like to reprint the entire letter, space restraints force me to omit a couple of paragraphs. What is printed is quoted verbatim.

"After reading Volume 4, Issue 2, under Points of Legal Interest, I get a little nauseous thinking about the guys that got into a fight at work; sued their employer for improper hiring of one another and then got to keep their jobs. These must be the people that Paul Harvey refers to as the SUERS.

Well, I can name seven places where this didn’t happen. The statistics are in for 1997 and the seven railroads that worked the most man-hours with ZERO personal injuries, or as referred to by the "Jake" Award as, "THE MAGNIFICENT SEVEN" are listed below alphabetically.

There were also a very impressive number of other railroads turning in perfect safety records qualifying them for the "Jake" Award for railroading excellence.

The "MAGNIFICENT SEVEN" use to consist of the top railroads with zero lost time injuries. However, awhile back a good railroad in the northeast had zeros all the way across, but were ninth down the list due to the number of man-hours worked, while the seventh railroad had numerous injuries and a not so good frequency severity index ratio, but with zero lost time accidents. The northeastern railroad protested that their perfect zeros all the way across with a few less man-hours was better than the seventh railroad with numerous injuries.

No doubt, it’s a challenge to keep the awards fair to all, but with the FRA emphasizing zero tolerance we are eager to show the Government that the "Jake" Award group has what it takes to meet their challenge. So, for 1997 we raised the bar a notch and the words "lost time" were dropped. Now no one can dispute the fact that the "Jake" Award group of railroads are the safest railroads in the world with zeros all the way across the board.

Who knows, maybe the Government will in turn meet our challenge of zero tolerance for user fees, costs, and taxes...?

I understand the safety committee of the newly merged Regional and Short Line Association will be handling these awards next year, so if you have any recommendations or suggestions please contact on of the committee members.

Maybe it’s because I went to a one-room county school in Kansas, but I like things simple and the mission of this award is just this simple; "To convey a special honor and respect and to salute the fine folks that gave so much of themselves to make railroads a safer place to work" and "To use results as a measuring stick and create an incentive for all railroads to set high standards and to pursue excellence in their quest for perfect safety".

Only to my good friends in the railroad industry would I admit that it might be a little bit ego, or maybe it’s the fact that I am very proud to be a small part of this 200-year old industry, but one thing I will make perfectly clear, "I am damn proud to have my name associated with the fine folks that win the awards for railroading excellence by turning in a perfect year of zeros in safety."

Sincerely,

L. S. "Jake" Jacobson

Thank you, Jake, and congratulations to the "Magnificent Seven" and to all the other winners of the 1997 "Jake" Awards. We at RCSI wish continued success to each of you.

BITS AND PIECES

We hope you enjoy our newsletter. We assemble items of interest from many sources in a modest attempt to bring you the news you need to protect your company in today’s evermore intensifying litigious climate. This is not a task we can accomplish alone. Please allow me to refer you to two other newsletters, published on a more frequent schedule, that also provide invaluable information to our industry. The first is "Views & News" published by the American Short Line and Regional Railroad Association. For information on subscriptions, please call (202) 628-4500, or email them at aslrra@aslrra.org. The second is "U.S. Rail News". For information on a subscription to this fine newsletter, call(800) 274-6737, or visit their website at http://www.bpinews.com.

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The American Shortline and Regional Railroad Association and the AAR have failed to reach an agreement on the four areas of a proposed policy agreement between the Class I and small railroads. Those areas include 1) interchange issues, 2) car supply policy, 3) rate fairness and 4) manifest train service problems. ASLRRA has requested the AAR to re-start the talks.

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Democratic Senator Tim Johnson of South Dakota has introduced a federal bill that would require all railroad cars to be marked with reflectors or reflective tape. This is an idea that has been around for years. To the best of my knowledge, there are no studies to confirm that such markings are effective in safety enhancement, but it appeals to politicians. We will keep a close eye on this and keep you informed.

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The top three rail related safety priorities of the NTSB for 1998 are 1) Installation of equipment to prevent train collisions, 2) Reduction of train operator fatigue and 3) Increased installation of automatic data recorders in trains. With regard to the operator fatigue, proposed regulations cover:

There is also reference to "napping strategy". I have not read the complete report, so I am not exactly certain what is meant by "napping strategy", but it sounds almost like "sleeping on the job". I thought this is one of the problems the regulations were promulgated to solve. Mr. William Loftus, president of the ASLRRA, has stated his opposition to mandated safety standards on job fatigue as being unrealistic for shortline railroads. Many shortline employees are not limited to one job classification. If these proposed standards are adopted, they could restrict the workdays of shortline employees, causing financial hardship. Shortline railroads simply do not have the manpower and the rigid job classifications of their Class I brethren.

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On May 2, 1995, an Amtrak train carrying 279 passengers and 14 crew members struck a tractor-lowbed semitrailer that had been lodged on a grade crossing for about 30 to 35 minutes. Thirty-three persons sustained injuries and property damage exceeded $1 million. In its investigation, the NTSB estimated that if the driver had placed a call to the railroad, the dispatcher could have stopped the train prior to the collision within 4 minutes, and prevented the accident. Therefore, the NTSB has recommended to the ASLRRA that it: Encourage your members to develop and implement, without delay, a 24-hour toll-free emergency notification telephone system for use by the public in promptly reporting emergencies at all your members’ highway/rail grade crossings, both active and passive, and provide information at each crossing to inform the public of the 24-hour telephone system.

RCSI welcomes your input. If you have any questions or comments of interest to our industry, please contact Dave Gardner at (901) 967-1796 or FAX your message to (901) 967-1788.

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

800-786-5204 FAX (901) 967-1788 Email – rcsi@hcol.net

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