RAILWAY CLAIM SERVICES, INC.
----- Over 13
Years of Service
I sit at my desk in front of my computer working on next month's newsletter and
attempting to draw images in my mind pertaining to railroading, it is a
difficult task to perform at this time, only three days after terrorists
cowardly attacked and snuffed out thousands of innocent American lives in New
York and Washington. Hopefully, you
will understand when I offer up instead our (Railway Claim Services, Inc.'s)
belated sympathy, prayers, condolences and love to all the ones directly
affected by this world tragedy.
broken steel and broken hearts, but an American spirit and resolve that remains
intact and undaunted by this despicable act of war, we also extend our prayers
for a swift, just and sustained punishment to the terrorists and countries
directly and indirectly involved.
make a vow to myself that from now on every time I board an airplane I will
remember September 11, 2001, the innocent Americans who lost their lives
and offer up my thanks to God that I was born and raised in the greatest
country on earth. May this country as a whole turn back/to God and unilaterally
mean it when we quote "One Nation, Under God, Indivisible, With Liberty And
Justice For All."
YORK, PENNSYLVANIA AND WASHINGTON
AND THAT ACROSS THE COUNTRY
JAKE AWARDS: In
2000 an amazing 191 railroads won the Jake Award and 18 railroads won the Jake
Award With Distinction. The
Jake Award recognizes railroads that operate during the year without a fatality
or injury. The Jake With
Distinction Award is given to railroads that operate during the year without a
fatality, injury or train accident.
most everyone knows, this prestigious safety award is named in honor of Jake
Jacobson. The first Jake Award
occurred in 1995 and recognized those safely operated railroads in 1994.
Through Jake's tireless efforts in more ways than can be mentioned, the
number of railroads receiving this award has increased every year to the
remarkable number receiving awards for last year.
The railroad industry has honored Jake with numerous awards, including
"Citizen Of The Year Award," "Railroader
Of The Year" and
"Railroader Of The Century."
Recently, Jake stated, "Each of these 191 individual railroad's
dedication and accomplishments toward a standard of excellence in railroad
safety have made me damn proud to have my name associated with them and their
Jacobson's name is as synonymous with railroad safety as Daniel Boone's and Davy
Crockett's names are with conquering the frontier.
Congratulations to all recipients of the Jake Award from Railway Claim
Services, Inc. and a special thanks to Jake Jacobson for making a difference in
the lives of railroads, railroaders and their families across the country.
LAND CASE SETTLEMENT: Lebanon,
Indiana, Wednesday, August 15, 2001, judge approves settlement in railroad land
cases. As many as 12,000
Indiana landowners may receive titles to land abandoned by the former Penn
Central Railroad under a settlement approved by a Boone County judge.
The settlement resolves more than eight years of litigation in an
ownership dispute that spanned 53 counties and 733 miles of abandoned railroad
class action suit stemmed from the railroad's practice of selling or attempting
to sell abandoned right-of-way to adjoining property owners.
Attorneys for landowners argued that the railroad's control of most rail
beds ended when it abandoned the railway. Besides
granting titles, the agreement guarantees $300 to $1,200 to property owners who
did not pay the railroad. Those who
did pay the railroad the requested "selling price" are to be repaid in
full, plus 8% interest per year. Total
value of the settlement could be almost $40 million.
STATE DOCKS RAILROAD DERAILMENT: In
the A.M. on August 14, 2001 the Alabama State Docks Railroad sustained a
derailment in Mobile, Alabama involving seven cars.
One car contained the chemical acrylamide, which was leaking 15 gallons
per minute. The leak was shortly
capped but not before 400 plus residents were evacuated for the day, returning
to their homes that night. RCSI
subsequently set up a temporary claims office and settled over 400
evacuation claims over five days.
Action comments started arising among some residents and there is the
possibility of such a forthcoming action. We
remember the $2.2 billion verdict in New Orleans against CSX arising from
another short line evacuation. However,
the plaintiffs may be disappointed when they discover that the railroad is state
owned and, in all probability, protected from this type of litigation.
RETIREMENT BOARD FUNDS STABLE FOR NEXT 25 YEARS: The Railroad Retirement Board's most recent
report to Congress indicates the retirement system at the end of 2000 reported
$18.6 billion, while the railroad unemployment
account balance was $93.6 million. The
report's analysis of the health of the railroad retirement system over the next
25 years was generally favorable, but indicated that the long-term stability of
the system under its current financial structure is still dependent on future
railroad employment levels.
Cumulative traffic totals for U.S. railroads during the first 31 weeks of
2001 are 10,236,841 carloads, down 1.4% from last year.
Intermodal volume of 5,218,590 trailers and container was down 0.3%
and total volume of an estimated 863.7 billion ton-miles, up 0.1% from
last year. Canadian railroads
cumulative carloads were down 1.4%, but trailers and containers were up 2.6 from
On August 9, 2001 in
Nashville, Tennessee, over twenty railroad officials came together to show
Congressman Bob Clement their appreciation for his work on
issues pertaining to the short line railroads.
Rep. Clement played a role in bringing H.R. 1020, the railroad retirement
reform legislation, and the RRIF loan program to the stage they are today.
He also spoke of his support for H.R. 1020, the Railroad Track
Modernization Act of 2001, and expressed his appreciation to the short lines for
their help, at the same time indicating we had a long way to go in that regards.
TOPIC FROM THE EDITOR
are several types of claims/incidents/exposures that a railroad may face on a
daily or weekly basis. In this
quarterly topic I will attempt to address those individually and offer up
suggestions that might assist in minimizing your exposure and improving certain
conditions that might be helpful in preventing these from occurring.
Any positive experienced input that you might want to share with other
short lines will be appreciated.
invitees and licensees incidents are frequent in the railroad industry.
Knowing the difference between these categories and actions taken to
prevent their occurrences can decrease a railroad's monetary exposure.
Definitions and suggestions are covered below to assist you in your
who has no business on railroad property, whose presence is unknown and
unexpected. The railroad owes no
duty to a trespasser other than to refrain from wantonly or willfully causing
injury to him. A person falling
into this category would be an intoxicated vagrant located where there is
normally no activity of any kind.
The age of a child may have a bearing on the outcome.
Nearly all states recognize the inability of a child under the age of
seven to distinguish danger. The
age at which this inability to distinguish danger ends varies from state to
who has business on railroad property, or consent to be on railroad property,
while possibly unknown, is not unexpected.
The railroad owes this person the duty of reasonable and ordinary care.
Examples might include a delivery person, mail carrier, or meter reader.
Known locations of bikers, children, nature lovers, hikers and even hobos
can cause an incident to move from trespasser to invitee category, depending on
the individual circumstances. Known
trespassers could "move" into this category if the railroad knows of
trespassers and does nothing to prevent their access to railroad property.
The railroad's acquiescence of a treapasser or trespassers could legally
make the trespasser(s) invitees, which then increases the "standard of
care" owed to these trespasser(s) from not to willfully or wantonly cause
their injury to a higher standard of reasonable or "ordinary care."
who has business on railroad property, consent to be on railroad property, and
whose presence is both expected and known.
The duty owed by the railroad is again that of reasonable and ordinary
care. An example of this would a
contractor. The difference between
an invitee and a licensee is that an invitee is on the railroad property for
their purpose and a licensee is on the railroad's property for the railroad's
LIABILITY AND SUGGESTIONS
Obtain information from your attorney concerning the laws of your state
and familiarize yourselves with those laws.
Put up "No Trespassing" signs on all bridges, switching yards,
complexes of any nature and any location that might be inducive to trespassers,
invitees and licensees. This should include well-worn pathways, hobo jungles,
etc. Photograph each sign,
its location and date installed. Maintain
those signs and replace them as necessary.
Develop an aggressive plan to deal with trespassing and share this plan
with employees, law enforcement agencies and civic leaders.
Report and document all cases.
offenders are common. If you are on
record of removing a trespasser, that bodes well if they are subsequently
injured or killed on your premises.
Investigate all incidents with memo statements from the crew and
photographs of the general area. Do
not take graphic photographs of the victims as they are normally discoverable in
a court of law. Make sure
your photographs depict the entire surrounding area to show that there were no
reasons for the trespasser to be located in that area.
If there are reasons or excuses as stated above, your attorney will need
to know it for his defense.
Eliminate or safely secure "attractive nuisances"
such as an abandoned railcar or an abandoned
building or "dangerous instrumentalities" such as sharp tools left
laying around that could cause harm to a young child.
There are certainly gray areas where this is concerned but a gray area to
a railroad may end up and be black and white to a jury.
If a serious incident occurs, RCSI stands ready to assist in the
investigation or advice in the alternative.
OF LEGAL INTEREST
Taylor, Indiv. and as personal rep. of John Gable, deceased vs. Mississipian
Railway, Inc., et al, Circuit Court of Hawamba County, Mississippi Honorable Judge Frank
A. Russell grants railroad summary judgment.
Gable, age 19, was traveling on his four wheeler on the railroad track, going
from his home to his place of work on April 9, 1998 when, allegedly, he struck a
pile of ballast between the rails causing him to lose control of his four
wheeler resulting in his death. Plaintiff
alleged the railroad was negligent for leaving a pile of ballast between the
rails and on notice that four wheelers were being ridden up and down the track. Railroad denied both charges and claimed that Gable's own
actions were the proximate cause of his death.
In his closing remarks Judge
Russell states, "Because the Plaintiff has failed to present any proof that
the Mississippian acted willfully or wantonly at the time of the accident,
summary judgment is appropriate". Accordingly,
the claims of the Plaintiff must be dismissed with prejudice.
I would like to take credit for this success story since I investigated
and handled this matter for RCSI and the railroad; however, the real credit goes
to Defense Counsel J. Douglas Ford of the firm Studdard, Ray & Ford,
Columbus, Mississippi for this favorable results.
D. Hajek v. Burlington Northern Santa Fe Railroad Co.. U.S. Circuit Court of Appeals Rejects Contention That Lack of
Definitive Diagnosis for Back Pain Means Limitation Period Not Triggered
Grant of Summary Judgment to Railroad Affirmed.
performed a lot of heavy lifting for the railroad and in 1987 was equipped with
a back support by his chiropractor to wear on the job.
Chiropractor claimed he had a discussion with his patient about his
problems being "work" related. Suit
was filed in 1996. Railroad sought
summary judgment on statute of limitations grounds due to the conversation in
1987 and the fact that tentative diagnosis of degenerative disease was made by
two chiropractors prior to 1993, confirmed by x-rays.
The district court granted the summary judgment and it was upheld by the
Ninth U. S. Circuit of Appeals Court, Case No. 99-36170
City Southern Railway v. Johnson, Supreme Court of Mississippi, Case No.
1999-CA-00505-SCT. Court Affirms $3 Million Remitted Verdict.
Crossing accident involving train going 40 miles per hour with the
vehicle traveling adjacent to the train before turning onto a steep, rough
roadway to a humpbacked summit crossing where the collision occurred.
There were no active warnings at the crossing and plaintiff alleged
vegetation obscured his view and the whistle was not sounded at such a distance
to give him ample warning. The
resulting collision caused a severe closed head injury which left plaintiff with
a child's capacity. After the trial
the court denied a motion for directed verdict based on federal preemption and
found for the plaintiff in the amount of $2.5 million and his wife in the amount
of $1 million, which was reduced to $500,000.
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.
the Railway Claim Services, Inc. webpage. Its
located at www.railway-claim-services.com
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
Claim Services, Inc. 52 South Main
Street Lexington, Tennessee