ON TRACK WITH RAILWAY CLAIM SERVICES, Inc.

Volume 7 Issue 2                                                       October, 2001

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

 FROM THE EDITOR

As 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.

 With 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. 

 I 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."

                                 

IN MEMORY  OF  EVERYONE  WHO  LOST  THEIR  LIFE  OR  SUFFERED

INJURIES  IN  NEW  YORK, PENNSYLVANIA AND  WASHINGTON  ON  SEPTEMBER  11, 2001.

THIS AND THAT ACROSS THE COUNTRY

THE 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. 

As 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 employees."

Jake 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.

 RAILROAD 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 right-of-way land. 

The 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.

 ALABAMA 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.

Class 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.

 RAILROAD 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

insurance 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.

 RAILROAD TRAFFIC:     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 last year.

 TENNESSEE CONGRESSMAN:     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.  

 QUARTERLY TOPIC FROM THE EDITOR

There 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.

Trespassers, 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 endeavors.

Trespassers - Someone 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 state.

Invitees – Someone 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."

Licensee – Someone 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 purpose.

LURKING LIABILITY AND SUGGESTIONS

1)    Obtain information from your attorney concerning the laws of your state and familiarize yourselves with those laws.  

2)     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.  

3)    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.

Repeat 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.

4)  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. 

5)  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.

6)  If a serious incident occurs, RCSI stands ready to assist in the investigation or advice in the alternative.

 POINT OF LEGAL INTEREST

Linda 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.    John 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.  Congratulations, Doug.

 Kenneth 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.   Plaintiff 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

 Kansas 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.

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  

800-786-5206    FAX (901) 967-1788     Email – dave_gardner@railway-claim-services.com                                                              or        mike_redden@railway-claim-services.com