1998 Fourth Quarter Release

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

 

RAILWAY CLAIM SERVICES

10 Years of Service

 

 

Railway Claim Services Webpage

Thanks again to everyone who has visited our webpage. In response to many requests, we have added a "Search" feature in order that you can quickly find particular items of interest on our website, to include past issues of this newsletter. We have added a feedback section so that you can make any comments while at our website. We appreciate your feedback and make every attempt to incorporate your comments and suggestions to make this site better and more user friendly.

RAILROAD INDUSTRY AGREEMENT

On September 10, 1998, ASLRRA President Bill Loftus and AAR President and CEO Ed Hamberger signed and put in place the groundbreaking Railroad Industry Agreement that has been the subject of intense negotiations for the past several months between representatives of the large and small railroads. The agreement contains provisions aimed at better meeting the car supply needs of customers served by shortline and regional railroads, and improving the quality of interline service. It also deals with certain issues between Class I and smaller railroads involving rates, switching charges and paper barriers, and contains provisions to give shortline and regional railroads access to new routes and haulage agreements to develop new business. The rate-related provisions of the agreement were submitted to the Surface Transportation Board for its review and approval. All other provisions of the Agreement took effect immediately. All sections of the Agreement apply to participating Class I and Class III railroads. Participating Class II railroads are covered by all sections except those dealing with paper barriers and new routes. In order for individual railroads to receive the benefits of the Agreement they must execute a separate document in which they subscribe and agree to abide by the Agreement’s terms and conditions. All Class I railroads have already subscribed. The ASLRRA mailed copies of the Agreement and subscription forms on September 18, 1998. If you did not receive the Agreement or the subscription form, call Sydnee at the ASLRRA offices (202) 628-4500.

The Y2K Bug (or, How I Learned to Stop Worrying A^d #a%e T#@ co=9"!@r)The Y2K Bug (or, How I Learned to Stop Worrying A^d #a%e T#@ co=9"!@r)

Y2K, as I have learned, is computerese for the Year 2000. The Y2K Bug refers to a problem bearing down on all computer users as the millenium approaches. Allegedly, as the clock makes one tick past 11:59.59 PM on December 31, 1999, about half the computers in the known world are going to become terminally nostalgic and revert to January 01, 1900. To be truly accurate, it is not only computers that suffer from the Y2K bug, but any type of machinery or equipment that is run on time and date sensitive embedded chips that are not Y2K compliant. For example, fax machines, office equipment, telephone switching systems, signal systems, security systems, etc. These embedded chips pose a unique problem because they are usually integrated into the particular piece of equipment, and the operator may not realize that the equipment is controlled by an embedded chip. Even if it is recognized that there is an embedded chip, the operator may not know if the chip is Y2K compliant. If it is not compliant, there are three possible ways in which it can react. The equipment can (1) cease to function, (2) malfunction, or (3) continue to function normally. Options 1 & 2 are naturally the ones that cause concern, and it is option 2 that is considered by many to be the most likely to occur. January 1 in the year 1900 was a Monday. January 1 in the year 2000 will be a Saturday. The most likely malfunction will be that, if the device is not Y2K compliant, it will believe that when the calendar rolls over to January 1, 2000, it will be a Monday morning. This malfunction may not even be noticeable to the operator. For instance, if you have a device that you program to make twelve dozen widgets on January 1st, 2nd, 3rd, 4th and 5th, then zero widgets on January 6th and 7th, it really doesn’t make any difference to the machine what days of the week those dates fall on. You might even feel that your equipment is operating normally (option 3). Your first indication of trouble might not show up until Tuesday, February 29, 2000. There wasn’t a leap year in 1900, there is in 2000. The point being, it is critical that you identify all time and/or date sensitive operations within your company, then identify all machinery/equipment/devices associated with these operations. You must then determine whether or not these devices are Y2K compliant. Contact the manufacturers and ask them if the device is equipped with a time and date sensitive chip, and if that chip is Y2K compliant. There are several sites on the Internet that address the Y2K problem. RailTex and Union Pacific have addressed this problem. The AAR and ASLRRA have a joint year 2000 task force to study the possible effects of this bug on our industry. Following is a list of websites with additional information on the Y2K Bug.

http://www.railtex.com/Y2KPaper.htm

http://www.uprr.com/y2k/

http://www.year2000.com/cgi-bin/y2k/NFyear2000.cgi

http://www.ibm.com/IBM/year2000/

http://www.gatech.edu/year2000/

http://www.is.ufl.edu/bawb052h.htm

http://pw1.netcom.com/~ggirod/bookmark.html

Lest you feel that the Y2K Bug is a minor concern, The Gartner Group, a high-tech consulting company, has estimated that more than 80 percent of all companies will have some Y2K related system failures and about 30 percent of all companies will have mission critical system failures that will directly impact the company’s survival!

PROPOSED REVISIONS TO LOCOMOTIVE ENGINEER REGULATIONS

On September 22nd, U.S. Transportation Secretary Rodney Slater announced a proposal to revise and update federal safety regulations that govern the nation’s railroads and those men and women employed as locomotive engineers. This proposed rule will be the first comprehensive revision of the locomotive engineer safety regulations since they became effective in 1991. The existing regulations have required railroads to disqualify locomotive engineers who violate certain safety rules. The proposed revision retains this provision, but amends the disqualification periods and provides increased opportunities for remedial training for less serious violations. It also addresses minimum safety standards for the operation of vehicles that may be used in lieu of traditional locomotives. The proposed revision defines the options available to new railroads and the methods to be used to train and qualify locomotive engineers when increased business allows abandoned lines to be rehabilitated and reopened. It also clarifies the minimum hearing and vision standards necessary to safely operate locomotives. The proposal is in FRA’s Docket No. RSOR-9, Notice 10.

49 CFR PART 213

FRA has published its new Track Safety Standards in the Federal Register at 63 Fed. Reg. 33991, et seq. (June 22, 1998). These new regulations became effective September 1, 1998. These regulations take up 65 pages, and while broad in the subject matter covered, are extremely detailed in their requirements. I will not attempt to summarize the new regs. Please instruct your legal counsel to obtain a copy of the new regulations and study them carefully. The federal preemption defenses used in defense of crossing accidents is specifically addressed in these new regulations. I am certain that the NARTC will produce volumes of material dealing with the legal ramifications of this new standard. If your local legal counsel is not a member of the National Association of Railroad Trial Counsel, it might be in his/her interest to consider joining. The NARTC can be reached at (310) 459-7659.

1998 ASLRRA ANNUAL MEETING

I attended the 1998 Annual Meeting of the American Shortline and Regional Railroad Association in Atlanta recently. It was a great pleasure for me to meet many of you and to be exposed to the ideas and plans that drive our industry. It would be impossible for me to acknowledge everyone I met there, but I would like to thank you for your input and your comments regarding RCSI and this newsletter.

POINTS OF LEGAL INTEREST

Prysock v. Metropolitan Transportation Authority, 673 N.Y.S 2d 736 (A.D. 2 Dept. 1998). In effect, this case decided that motorists who drive their vehicles onto railroad tracks at intersections where traffic is backed up assume the risk of injury from oncoming trains. The decedent approached a railroad crossing where traffic had backed up to the opposite side of the tracks. Despite this, she drove onto the crossing and stopped. Traffic behind her effectively trapped her on the crossing. A train approached the crossing. The crossing signals began flashing and the crossing arms came down. The engineer saw the trapped car and placed his train in emergency, but to no avail. The train struck the car and killed the driver. The family of the dead driver claimed that the train did not sound its horn and claimed that the crossing should have been flagged by police. The railroad argued that the driver assumed the risk of her own injury when she drove onto the crossing in stalled traffic. The court sided with the railroad and said in part, the driver’s "conduct in driving her car onto the railroad tracks, when there was no room to safely pass over them, was so reckless as to constitute an intervening and unforeseeable action, which broke any casual nexus between her injuries and any alleged negligence on the part of the [railroad]."

 

Lintner v. Norfolk & Western Railway Company, 694 N.E. 2d 140 (Ohio App. 12 Dist. 1997). While we are on the subject of negligence on the part of the motorist, this case is an excellent reference for your defense counsel. It is an Ohio ruling that says that if the motorist is negligent in a collision with a train, the railroad is not liable for damages, regardless of whether the engineer sounded the whistle. Did you understand that? Let me say it again. If the motorist is negligent in a collision with a train, the railroad is not liable for damages regardless of whether the engineer sounded the whistle! What makes this decision so very interesting is the fact that the plaintiff in this case was not the driver of the vehicle, but a passenger. In summary, a pickup truck occupied by the driver and two passengers pulled into the path of a N&W train, was struck and all three occupants of the truck were killed. The view at the crossing was clear and there was no dispute regarding the warning signs at the crossing. The only fact in dispute was the sounding of the locomotive whistle. Each side had witnesses to testify that the whistle was or was not being sounded. Therefore, this would be a jury question, right? Not so said the trial court, backed up by the court of appeals. The sole proximate cause of the accident was the driver’s failure to look and stop.

 

Pittman v. Frazer, 129 F. 3d 983 (8th Cir. 1997). So, what happens if the view at the crossing is not clear? In this case, two young people drove into the path of a UP train at a private crossing. Both were killed. The parents of the passenger sued and claimed that the UP had failed to keep the crossing free of vegetation that could block the view of motorists, as required by Arkansas law. The Arkansas law in question states that railroads are required to "maintain their right-of-way at or around any railroad crossing of a public road or highway free from grass, trees, bushes, shrubs or other growing vegetation which may obstruct the view of pedestrians and vehicle operators using the public highways." The railroad argued that the crossing was not located on a public road or highway, but rather a private road. As such, they argued, this Arkansas law would not apply. The trial court agreed and the appeals court affirmed.

 

Birmingham v. Union Pacific Railroad Company, 971 F. Supp. 1282 (E. D. Ark. 1997). Lest we become complacent, this case effectively attacked the federal pre-emption defense. This was a two-prong attack, and both were successful. First, the background. This crossing accident occurred at a public crossing equipped with two reflectorized crossbucks. The lawsuit complained that the crossing was abnormally dangerous and should have been equipped with automatic gates with flashing lights. This lawsuit was based on Arkansas State law. The railroad argued that since the crossbucks were installed with federal funds, the Federal Rail Safety Act pre-empted the lawsuit. So far, this all sounds very familiar. Based on Easterwood and Hatfield, you would assume that the railroad would prevail in their argument. Not necessarily. First of all, the crossbucks had lost their reflectivity over time. Thus, they were not "operating" properly. Secondly, the Federal Rail Safety Act requires automatic gates with flashing lights at crossings with limited sight distance, or at crossings used by trucks carrying HazMat or by school buses. All three criteria were present at this crossing. The federal court ruled that the warning devices at this crossing did not comply with the regulations set forth by the Federal Rail Safety Act, and that as a result, the railroad was not entitled to use pre-emption as a defense. The success of these arguments is chilling and RCSI will be closely watching the courts to gauge the extent of damage caused by this ruling in current and future cases.

 

Muller v. Lykes Bros. Steamship Company, U.S.D.C. E. D. New Orleans, LA, 337 F. Supp. 700, 1972. This case concerns mitigation of damages. The plaintiff was a 320 pound male, smoker and heavy drinker, with a blood pressure of 260/140. His injuries left him permanently disabled. His doctors had specifically recommended that he lose weight. In their economic presentation, the plaintiff’s attorneys offered the U.S. Department of Labor’s mortality tables dealing with life expectancy and work life expectancy. Defense objected and the trial judge agreed. The judge stated that the mortality tables had no relevancy whatsoever regarding this plaintiff. The judge also took into account the plaintiff’s lifestyle and failure to follow his doctors’ recommendations regarding weight loss by stating that the plaintiff’s failure to mitigate his damages, by following the expert recommendation of his doctors, meant that his recovery for damages must be diminished.

BITS AND PIECES

In the last newsletter, I mentioned that I was unaware of any study that confirmed the benefits of reflectorization on railroad cars. I received several calls regarding this stating that there has been a recent study by the Volpe Group that does confirm the value of reflectorization. It took several telephone calls, but I have finally tracked this down. It seems that there has been a recent study by the U. S. Department of Transportation Volpe Group. The study is not yet public. The results of their study have been forwarded to the FRA for analysis, editing and publishing. The study was provided to the FRA in a web-ready format and it is hoped that when the study is published, it will be available on the World Wide Web. We will keep you posted on this subject, and many thanks to everyone who helped me in tracking this down.

Finally, I would like to alert you to an emerging strategy from the plaintiffs’ bar – fatigue. This is being applied across the board, from crossing accidents to employee injuries. In crossing accidents, fatigue is being blamed for failure to sound a warning, failure to keep a proper lookout, failure to apply the brakes promptly, failure to promptly notify police and ambulance personnel, etc. It is being especially applied to all hours-of-service personnel. This includes the train crews, dispatchers and others. A unique argument being made with regard to the train personnel is that the telephone call made to the employee notifying him of his next assignment, is evidence that his off-duty time was interrupted. Call sheets and hours-of-service logbooks are used together to establish a pattern of interrupted rest. They are also making the arguments that erratic work schedules disrupt the natural circadian rhythm producing fatigue, even when the required off-duty time is present. In FELA cases, fatigue is being claimed to explain accidents in which the railroad would otherwise appear to be free from any form of negligence. This has the potential to be a particular problem for the shortline railroad due to the fact that so many employees are required to work at different jobs and put in long hours to keep the railroads going. RCSI will monitor court cases wherein fatigue is claimed as a major factor and keep you posted as to how defense counsel responds to these claims.

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           dave_gardner@railway-claim-services.com

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