ON TRACK WITH RAILWAY CLAIM SERVICES, Inc.

Volume 7 Issue 1                                                              July, 2001

 

RAILWAY CLAIM SERVICES, INC. -----  Over 13 Years of Service

 FROM THE EDITOR:

 Taking a spin off from our above headlines "On Track, etc.", we're back on track with our newsletter.  While we have been somewhat remiss in sending out the newsletter, we have a legitimate excuse.   Railway Claim Services, Inc. has been swamped with a workload that merited priority over the newsletter; however, we will make every effort to not derail again in the near future.  I am new at newsletter editing, so if there is any information or topics you would like to see covered, please email me at mike_redden@railway-claim-services.com.

 ALL YOU WANT TO KNOW (and maybe then some) ABOUT RAILWAY CLAIM SERVICES, INC.

 RCSI is a privately held company, providing claim and litigation services for railroad industry claims.  RCSI provides direct claims management services to over 400 railroad affiliated companies with related claim services, i.e., risk management, claim investigation, claim related forms, releases, and telephone support.  RCSI's principal office is in Lexington, Tennessee (toll free number 1-800-786-5204) with claims managers throughout the United States and Canada.  These claims mangers have extensive railroad claims experience in investigations, management, negotiations and related activities on behalf of the railroad industry and those serving the railroad industry.

 RCSI is the leader in providing independent risk management and claims handling services for the railroad industry.  RCSI offers expertise in the handling of claims involving FELA/employee personal injuries, crossing accidents, derailments, trespassers/licensees/invitees, product liability, hazardous material spills, evacuations and any other situations facing our industry.   RCSI can provide risk management surveys and/or property inspections to identify potential exposures and develop plans to eliminate these exposures.  RCSI can assist you in securing competent legal counsel to defend your interests.  RCSI can provide total claim services for short line railroads, regional railroads, Class I railroads (we now list NS and AMTRAK among our clients) or for any railroad related business, providing claim services for all areas of general liability, employees and third parties.  In addition to claims handling, RCSI provides risk and claims management, to include RCSI's copyrighted Claims Manual, policies, procedures, and forms specific to the railroad industry. 

 Log on to our web site, http://www.railway-claim-services.com and see detailed accounts of Litigation Management, Major Claims Investigation and Response, Releases and Forms, Referral Resource (doctors, attorneys, medical, surveillance, rehabilitation, structured settlement companies and other professionals as necessary), Administration of Medical Bills and Medical Records and Invoices, Training, Third Party Reports and Invoices, Disaster Handling, Environmental Claims, Negotiations and Collections.

 Presently RCSI is building a database of expert witnesses, who have testified in railroad related cases.   This is a work in progress; however, currently we have 239 defense experts, 483 plaintiff experts, 390 defendant medical experts and 791 plaintiff medical experts listed in this database.  RCSI is in the process of collecting copies of depositions, but until we have that complete we can refer you to other counsel who have faced the plaintiff's experts.  They may be able to provide copies of deposition transcripts and tips on how to approach these expert witnesses.  We can also give you the names of defense experts who have rebutted the plaintiff's experts.  For more information call or email Dave Gardner at 1-731-967-1796 or dave_gardner@railway-claim-services.com.

 If RCSI is not already a partner in your loss control and claims management program, allow us to put our experience and services to work for you to lessen your risk in these respects.

 THIS AND THAT ACROSS THE COUNTRY

 BLE VICTORY:  The Brotherhood of Locomotive Engineers took a huge leap forward in organizing the vast short line industry as workers on the Indiana & Ohio Railroad, a subsidiary of short line giant RailAmerica, when they selected the BLE as their collective bargaining representative.  The Indiana & Ohio Railroad is a 492-mile short line, which runs from Flat Rock, Michigan to Cincinnati, Ohio, hauling mostly soda ash, limestone, automobiles, trucks, lumber, chemicals and various industrial products.  RailAmerica owns nearly 11,000 miles of track in four countries on three continents.  The various unions did agree to support legislation in the U.S. House of Representatives, known as the Railroad Track Modernization Act of 2001.  The bill, H.R. 1020, would provide $350 million annually in federal subsidies for the next three years to help rehabilitate Class II and Class III railroad infrastructures.

 RAILROAD RETIREMENT OVERHAUL:  A bill overhauling the railroad retirement system recently passed the House by a 384-33 vote despite White House concerns it would violate President Bush's principles for Social Security and criticism from some Republicans about its $15 billion budget impact.  The legislation would affect railroad companies and approximately one million workers, retirees and survivors, allowing pension fund assets workers to be invested in private securities instead of lower-yielding government bonds.  The idea is to increase earnings, thereby reducing payroll taxes and boosting benefits.  Other major changes for the 1930s-era program include retirement at age 60 for employees with 30 years' experience without reducing their benefits, more generous benefits for surviving spouses and a reduction in vesting requirements from 10 years to 5 years.  On the net:  Congress:  http://thomas.loc.gov and American Association of Railroads:  http://www.aar.org.

 CSX DERAILMENT:  On July 18th CSX accomplished something that no one could do for over 2300 plus ball games, stop Cal Ripken from playing ball for the Baltimore Orioles.  A train derailment, acid spill and subsequent fire in a 1.5 mile long tunnel near Camden Yards brought the city to a virtual standstill, halting all traffic for hours, closing businesses in the proximate area and prompting the postponement of three Baltimore Orioles games.  NTSB is investigating the cause of the accident and their investigation is focusing on a possible broken water main.  However, the main issue to determine is, "Which came first, the chicken or the egg?"   Did the broken water main cause the derailment or did the derailment cause the broken water main?  Needless to say, a lot is riding on the results of the investigation.  Damages include the tunnel, cleanup, overtime for police and firefighters, business losses, Orioles game cancellations, and claims arising out of traffic control.  Did I hear someone say "class action?"

 UPCOMING CONVENTIONS:  8th Annual Regional Railroad Liability Seminar, 8/23 through 8/25, The Lodges at Deer Valley, Park City, Utah, contact person Joanne Easton, 1-847-318-4626.

 General Claims Conference, Twenty Fourth Annual Meeting, 9/19 through 9/21, Kansas City, Missouri, contact number is 1-318-676-6305

88th Annual American Short Line and Regional Railroad Association Meeting, 9/30 through 10/2, Anaheim Marriott Marquis Ballroom,   

 QUARTERLY TOPIC FROM THE EDITOR

 Investigations:    The prompt and complete investigation of an accident/incident can be the difference in losing or winning a lawsuit or holding the claims payment to a minimum.  This should be done in all incidents whether great or small because one never knows when the small incident/claim will increase to a larger one.  FELA has a three-year Statute of Limitations and state statutes run anywhere from one to six years, depending on the individual state. Promptness is important because you tie down the witness statements while the facts are fresh on their mind. You obtain photos of all pertinent aspects as to how they appeared that day and not weeks or months later.  You also inspect, document and preserve any of the evidence, material or equipment that might be involved.  If a piece of equipment is involved, save it.  Keep a record of who and when someone handled it until it was placed in storage.  There is always the chance of product liability on the part of the manufacturer for poor design or a flaw in their product.  If a witness tries to change their testimony at a later date your argument is that you secured their testimony when it was fresh on their mind and thereby give an indication that the subsequent change in their testimony is not the truth.  Negative or neutral statements are equally as important as positive statements.  We need to know and prepare for the testimony we will face.  Often times an outside witness to a crossing accident will tell an investigator immediately following a crossing accident that they could not say if the whistle did or did not blow; however, if a plaintiff's attorney gets hold of them 12 months post incident date their testimony, more times than not, will be that the train did not blow the whistle.  There's a big difference in that type of testimony.

RCSI has guidelines to go by on any type of accident and we will be glad to share these guidelines with you.  However, in the case of a moderate to serious accident/injury, it is recommended that someone from RCSI be called in to investigate for the short line.  There are so many resources we have at hand and our claims manages are equipped with the tools, knowledge and training to protect your long-term interests.  Your job is to haul freight and make a good living at it.  Our job is to help see that no one takes your money when it is not warranted and that all claims are handled and closed consistent with the facts and circumstances.

 ON A PERSONAL NOTE:  The NS and the claims field lost two giants in the past few weeks, Bill Millwood and Gordon Bird.  On behalf of RCSI, we extend our deepest sympathy to their close friends and families. 

 POINTS OF LEGAL INTEREST

 Height of Steps on New Locomotive a defect or should Preemption prevail as claimed by Railroad   – Georgia Court refuses to grant a Motion for Summary Judgment.   A locomotive engineer was working on a wide body locomotive in March 1997 and he was instructed to make a movement that included this particular locomotive.   The lead locomotive was built in 1996.  Plaintiff had been on it several times in the past, but the locomotive's design was primarily for road service rather than yard switching.    Plaintiff walked several feet on the upper level until he came to the steps that led to the lower level walkway.  While stepping down, the plaintiff fell forward, striking his left knee on one of the posts, which supported the handrail, at which time he claimed he fell because the steps were twelve inches apart in height and higher than he expected based on his previous experience.  Suit was filed and was countered by the defendant with a Motion for Summary Judgment.  The defendant maintained that the plaintiff's claim was preempted by the FRA's regulations of locomotive design, but admitted there were no regulations specifying the design of the locomotive walkway steps of this locomotive.  The defendant claimed that the FRA's review and approval of the locomotive's design, coupled with the FRA's inspection of the locomotive constituted "orders related to railroad safety" within the meaning of 49U.S.C. 20106.  The court determined that approval by the FRA did not equal an order issued by the FRA.  Therefore, it was determined by the court that plaintiff's action was not preempted.  Motion for summary judgment denied.  Don A. Hall vs. Central of Georgia Railroad Co., U. S. District Court, Middle District of Georgia at Albany.  Case No. 1:00-CV-49-1 (WLS). 

 Rearden v. Peiora & Peking Union Railway Co., 26F.rd 52 (7th Cir 1994).    Locomotive engineer sustained loss of eye when a pellet fired from a BB gun struck him as the train was passing by a Peoria, Illinois public housing project.  In his FELA suit, plaintiff alleged the railroad's failure to patrol the area, install bulletproof glass or provide goggles.  The district court granted summary judgment to the defendant, and the Seventh Circuit affirmed.  It was determined by the court that the locomotive had protective windows, but the crew left the windows open.  The court noted that the windows being closed would not have created an unsafe condition, and the record showed that the railroad had provided the means to prevent this injury.  The Seventh Circuit stressed that the FELA does not make the railroad an insurer against injuries, and it does not require the railroad to provide precautions that are impossible to defeat.

 Eastern Idaho Railroad Worker Injured When Empty Car Derails Due to Snow Buildup on Track – State Supreme Court Affirms Verdict.  The plaintiff's three-man crew was shoving into an industry siding with plaintiff riding the right side ladder of the lead car and the other two members in the locomotive.  The lead car derailed due to snow on the track.   Plaintiff was pinned between the empty car and the building.  Plaintiff presented evidence that the railroad's policy was to clear the snow before proceeding any further.  The two crew members on the locomotive decided to proceed without clearing the track because of the time elements involved.  Even though the railroad had a rule against an employee riding a car on the same side as a structure, it was not enforced by the railroad.   There was expert testimony that the best and safest method was to ride on the same side of the car as the engineer was seated in the locomotive.   The railroad argued that plaintiff's negligence caused his injuries.   A verdict was rendered in favor of plaintiff for $900,000.  The railroad was attributed 80% fault and plaintiff 20%.  The railroad appealed, but the appeals court affirmed the judgment.   Kyle Howell vs. Eastern Idaho Railroad, Inc., 24 P 3d 50 (Idaho 2001)

 Premises Liability – Waste Removal Contract Employee Slips On Ice From Train Yard's Leaky Hydrant, Thereby Causing Herniated Cervical and Lumbar Discs - $900,000 New York Mediation Settlement.  Age 41 at the time, the plaintiff was employed by a waste removal company.  He was instructed to empty sewage waste from the trains into a pumper truck.   The plaintiff claimed that he slipped and fell on ice adjacent to the tracks in the Babylon Yard as he attempted to hook up the pumping hose. The ice was allegedly caused by a leaky hydrant, and it was alleged the defendant had knowledge of this existing hazard.   Defendant argued their case on the fact that plaintiff knew beforehand of the condition that was open and obvious.  This case was settled in mediation for $900,000.  Andrew and Jacqueline Scaduto vs. LIRR.  Suffolk County (NY) Supreme Court, Index No. 029219/97.

Premises Liability – Escalator Fall Leaves Elderly Passenger Unable to Walk Without Assistance – Pennsylvania Federal Court Jury Awards $4.5 million Verdict against Amtrak   The 79 year old plaintiff disembarked from an Amtrak train at the 30th Street Station in Philadelphia. He was unable to locate an elevator from the station platform to the concourse or an Amtrak Redcap to assist him with his luggage.  Plaintiff decided to use the escalator.  It stopped abruptly between floors and then started again without warning, causing plaintiff to be knocked off balance, falling to the station platform.  Initially, he was temporarily paralyzed from the neck down but, after months of physical therapy, he was able to move.  He remains dependent on a wheelchair, cane and walker.  He claimed that Amtrak negligently restarted the escalator without first clearing it of passengers and that Amtrak was negligent in not providing assistance to elderly passengers.  Lorenzo v. National Railroad Passenger Corp., U.S. District Court, Eastern District of Pennsylvania.

 Another Premises Liability –Third Party Truck Driver Trips Over Protruding Bolt, Sustaining Injury To Rotator Cuff - $521,367.78 Gross Verdict In Florida.    A 46 year-old independent truck driver contractor entered the defendant's property on May 26, 1998 to pick up a container.  He parked his vehicle and proceeded to walk toward a luncheon truck located on the premises, at which time he stumbled over a bolt/screw that was protruding approximately one and one-half inch up from the pavement.   The fall resulted in rotator cuff tear, requiring two surgeries and plaintiff is no longer able to operate a truck due to the resulting disabilities.  The jury apportioned 5% negligence to the plaintiff, and 95% negligence  to the defendant.  Thus, the plaintiff received a net damage award of $495,299.39.  The defense motion for new trial was denied, according to the Florida Jury Verdict Reporter.  Jose Rivera vs. Florida East Coast Railway Co., Dade County (Fl) Circuit Court, Case No. 98-27435 CA 20.

 Trespassers – Intoxicated Male Transient Asleep And/Or Unconscious On Tracks, In Repeated Trespassing Incident, Was Struck and Fatally Injured By Slow-Moving Train – Defense Verdict In Utah.   Patrick Jim was a 30 year-old transient when he was struck and killed at the defendant's Ogden Yard on the night of September 10, 1996.  The decedent was either asleep or unconscious and subsequent blood alcohol tests showed his level to be .19 to .25.  The train was traveling around eight miles per hour and located in a curve at the time of the accident.  Due to the curve the headlight of the train was not directly following the path of the track so the decedent was not visible, although the engineer testified that he eventually saw an object, slowed, but could not tell what it was.  By the time he identified the object as a person it was too late to stop, even though he applied the emergency brakes.  He was also sounding the whistle prior to the locomotive reaching the decedent.  Plaintiff's attorney claimed that, because this area was near a "hobo Jungle", the railroad should have taken more precautions.  The defense moved for summary judgment and it was granted.  Evidence was entered that showed the decedent had been evicted from the premises some months earlier and knew he was trespassing.  The Court found no negligence on the part of the railroad and ruled that the railroad hd no duty to stop its trains every time there is some unidentified object observed on the track.  Ray Jim, Sr. and Cecelia Jim V. Union Pacific Railroad Co., U.S. District Court, District of Utah, Case No. 1:97 CV 6.

 LURKING LIABILITY:  As you see from some of the above decisions concerning invitees/licensees sustaining personal injuries under liability circumstances, this type claim/lawsuit can be expensive; however, a lot of these incidents can be avoided with an able safety department, or in the alternative a risk management/property inspection by RCSI, only one of many services offered to the short line industry.

  RCSI welcomes your input.  If you have any questions or comments of interest to our industry, please contact either Dave Gardner at (901) 967-1796 or FAX your message to (901) 967-1788 or Mike Redden at (615) 754-0518 or FAX your message to (615) 758-3483.

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                                                              or        mike_redden@railway-claim-services.com