ON TRACK WITH RAILWAY CLAIM SERVICES, Inc.

Volume 8 Issue 4                                                            OCTOBER 2002

 

RAILWAY CLAIM SERVICES, INC.          Our 14th Year of Service

MESSAGE FROM THE EDITOR

POINTS TO PONDER

TRIVIA AND HUMOR

THIS AND THAT ACROSS THE COUNTRY

QUARTERLY TOPIC

HISTORY OF THE ONE-DOLLAR BILL

POINTS OF LEGAL INTEREST

RCSI INFORMATION

 FROM THE EDITOR:

 SPECIAL NOTE:  Railway Claim Services, Inc. (RCSI) extends a special thanks to Norfolk Southern Railway (NS) for allowing RCSI to assist their claims handling efforts following a derailment and evacuation commending on September 15, 2002 at Knoxville , Tennessee .  After the evacuation was lifted, NS claims officers established a temporary claim center within the previously evacuated area.  NS is to be commended for their compassionate and fair handling of the Knoxville residents.   NS is a Class I railroad as well as a first class railroad.  RCSI appreciates the courtesies extended to us by NS and their claims department personnel.  In addition to Railway Claim Services, Inc. on-going commitment managing claims for the short line and regional railroad segment of the industry,  in 2002 Railway Claim Services, Inc. assisted three (CPR, CNIC and NS) Class I railroads with their disaster claims handling.

 MORE:  Allow me to reminisce about a subject that is dear and close to my heart – railroading.

 On July 1, 1862 , President Abraham Lincoln signed into law the Pacific Railway Act, which created the Union Pacific Railroad Company and chartered the company and the Central Pacific Railroad Company to link the country together from Omaha , Nebraska to Sacramento , California .  UP continues to this day to build on the rich history and is one of several Class I railroads, as well as hundreds of short lines, serving this great country.

 Union Pacific began building west from Omaha with 250 workers and a goal of laying two miles of track a day, working seven days a week, 12 to 16 hours a day.  The work force grew to 10,000 and encountered every obstacle possible, from blizzards and drought to mountains and canyons.  Almost seven years later on May 10, 1869 Union Pacific linked with the Central Pacific at Promontory Summit in Utah to complete the journey.  

The railroads have played an important and integral role in America ’s history and will continue to do so in the future.  During World War I and II thousands of troops and equipment were moved on a daily basis across country.

 When I was a youngster visiting my grandparents in Huntingdon, Tennessee and playing on the L&N Railroad (then NC&STL) mainline and playing ball in an old field adjacent to the L&N track next to Hayes Aircraft in Birmingham, Alabama, never did I realize that one day I would be railroading as a career and settling claims where foolish folks such as myself were on the track via foot or vehicle when they were not supposed to be.  By the way, I never did toss a rock at a train.

 Since I started my career on November 11, 1967 railroading has undergone many changes, some good and some not so good.  While the L&N covered 13 states and approximately 10,000 mile of track, operating from Miami , Florida to Chicago , Illinois , it operated as a family lines railroad.  In fact, once the Seaboard Coast Line took control and ownership of L&N in the early to mid-seventies, the name was changed to Family Lines System.  Unfortunately, with growth and employment increases Family Lines System lost that identity along the way.  To prove my point they also changed their name to Seaboard System Railroad.

The short lines that have emerged through the last quarter of the past century have presented the opportunity to return to that type of family atmosphere railroading.  This style is not as easy to adhere to when a railroad or any company operates on a large scale.

 What goes around comes around.  Now in the twilight of my career I have the opportunity to railroad as I did when I first started with the L&N.  And to all the short lines out there that utilize Railway Claim Services, Inc.’s services I will be forever grateful until the day comes when I “pull the pin.”

*************************************************************************************************Philippians 4:13 – I can do all things through Christ who strengthens me.

*************************************************************************************************

 POINTS TO PONDER:

 Friendship is like a bank account.  You can’t continue to draw on it without making deposits.

Asked for the secret of success, one executive who had worked his way up through the ranks said, “It’s simple, I never had a job I didn’t like.”

It’s tough to climb the ladder of success, especially if you’re trying to keep your nose to the grindstone, your shoulder to the wheel, your eye on the ball, and your ear to the ground.

Of all the things you wear, your expression is the most important.

Politicians and diapers have one thing in common.  They should both be changed regularly – and for the same reason. 

If one morning I walked on top of the water across the Potomac River , the headline that afternoon would read “President Can’t Swim.”  Lyndon B. Johnson

It is hard to believe that a man is telling the truth when you know that you would lie if you were in his place.  H.L. Meneken

 TRIVIA & HUMOR:

 Perseverance – Beginning at age 23 and in age order, he failed in business, ran for the Legislature and lost, again failed in business, elected to the Legislature, sweetheart died, had a nervous breakdown, defeated for Speaker, defeated for Elector, defeated for Congress, elected to Congress, defeated for Congress, defeated for Senate, defeated for Vice President, defeated for Senate, elected President of the United States.  Who is he?  Answer at the end of this newsletter.

 More Perseverance – Some years ago a man over 60 was offered nearly $200,000 for a restaurant-motel-service station business that he had spent his life building up.  He was not ready to retire, turned the offer down; the state subsequently built a new highway that bypassed his business.  He lost his business, was flat broke, but persevered.  At age 65 he took his special recipe, kissed his wife good-bye, traveled in his battered old car to other restaurants selling his product.  A few years later he had built a nationwide franchised restaurant chain.  Who is he?  Answer follows the above answer.

My mind works like lightening.  One brilliant flash and it is gone.

The only time the world beats a path to your door is when you’re in the bathroom.

An Auburn graduate said, “I was worried that my mechanic might try to rip me off.  I was relieved when he told me all I needed was turn-signal fluid.”

I’m so depressed…my doctor refused to write me a prescription for Viagra.  He said it would be like putting a new flagpole on a condemned building.

 “God speaks” billboards in the Cleveland area:

Let’s meet at my house Sunday before the game.

What part of “Thou Shall Not…” didn’t you understand?

Keep using my name in vain.  I’ll make rush hour longer.

Will the road you’re on get you to my place?

Big bang theory.  You’ve got to be kidding.

You think it’s hot here?

Have you read my Number One best seller?  There will be a test.

Don’t make me come down there.

 THIS AND THAT ACROSS THE COUNTRY

 Railroad Train Crew Work Hours.  New Transportation Safety Bill, H/R. 4761, seeks to limit train crew work hours and establish national toll-free number for motorists to report grade crossing problems.  A National Transportation Safety Board study showed train crews work as much as 432 hours a month, compared with 360 hours for truck drivers and 100 hours for airline pilots.

 Carloads And Containers Show Impressive Increase.  The AAR reported in June that freight on U.S. Railroads reached its highest level this year during the week ending June 15th, and intermodal traffic continued its recent surge.  Carload freight totaled 348,048 cars, up 6.6% from the corresponding week last year, with loadings up 13.0% in the west but down 0.4% in the east.  Interposal traffic not included in freight carloads rose 14.1% on the average container.

 Ted Williams, a Great American.  Ted Williams passed away on July 5th, shortly after the publication of this last newsletter.  Even in this type forum I would be remiss not to acknowledge Ted Williams’ passing.  Ted Williams was not a great American because he was one of the greatest baseball players to ever step onto a diamond. Although that achievement would be included in his assessment.  He was a great American because of his service to this country and how he lived his life.  He lost five years from his baseball career while serving as a Marine Corps pilot in World War II and the Korean War.  As a rookie in 1939 Williams had 145 RBI’s.  He was a two time MVP and twice won the Triple Crown award (Batting Average, Home Runs and Runs Batted In).  Williams had a lifetime batting average of 344 and hit 521 homers.  Had he not served in two wars he would have been much closer to Hank Aaron’s lifetime home run figure.  In 1941 Williams played a doubleheader on the last day of the season and had six hits, bringing his batting average to .406.  His average going into the game was .3995, so he would have been attributed with hitting .400 if he had elected to sit out those last two games.  Had he not been successful his season ending batting average would have been less than .400.  Williams is the last player to have a .400 batting average.  In 1966, Williams’ first eligible year, he was elected to the Hall of Fame.  Ted Williams is the only person who is a member of the Baseball Hall of Fame and the Fishing Hall of Fame.  While Williams will probably be remembered mostly for his baseball achievements.  I for one will always remember him first for placing his personal goals on hold while he fought in two wars to help keep this great country free.  Personally, I classify him as a hero.  Today, may Ted Williams be playing against some of the great players who preceded him to Heaven’s Field of Dreams.

 Railroad Retirement Board News.  Changes late last year to railroad retirement laws that have prompted a surge in train and engine crew hiring across among the industry.  An RRB spokesman said that more than 6,000 railroad workers had applied for retirement through April 2002, compared with 6,165 in all of last year.  Commenting on the RRB report, AAR Spokesman Tom White further noted that over half of all U.S. rail workers are 45 or older.  (ffd. Atlanta Journal Constitution)

 Railroad Safety Improves.  According to Edward Hamberger, president and chief executive of the Association of American Railroads, U.S. railroads have become a much safer place to work.  In his testimony prepared for the Senate Commerce Committee’s Surface Transportation Subcommitee Hamberger announced that railroad employee casualties have dropped 71% since 1980 and 57% since 1990.  Train accidents dropped 64% from 1980-2001 and 12% since 1990.

 Remote Control Railroading.  Edward Hamberger also shared these statistics with the same committee concerning “Portable Locomotive Control Technology.”  This technology allows the employee on the ground to operate the train, eliminating the possibility of misread hand signals or garbled radio communications.  Canadian National Railway reported that accident rates in yards using radio-control technology were 44% lower than in yards using conventional technology.  Canadian Pacific reported a two-thirds reduction in accidents rates.  CSX Transportation has 44 of the devises in use and plan on adding 100 more by the end of 2002.

 QUARTERLY TOPIC – “What Is Federal Preemption?”

 “The crossing should have had gates.” “The train was speeding.” “The locomotive should have had ditch lights.”

The cars should have been reflectorized.” These are arguments that railroads used to face in almost every lawsuit over a grade crossing accident.  However, since 1993 the courts have increasingly disallowed these arguments because of the legal doctrine known as “federal preemption.” In fact, this doctrine has become one of the most powerful legal tools available to railroads in grade crossing cases as well as some FELA cases.  This article will give a brief summary of what federal preemption really is to foster a better understanding of the doctrine.

 Federal preemption is a legal doctrine that is based on Article VI of the United States Constitution.  This Article is also known as “The Supremacy Clause.”  In short, this clause states that the United States Constitution, laws and treaties shall be the supreme law of the land.  Federal preemption comes about when there is a conflict between federal law and state law.  In such cases federal law governs.

 Obviously, there are many areas where federal law and state law cover the same subjects and appear to be in conflict with each other.  Courts, however, are reluctant to use preemption, and use it only in two circumstances.  The first is where Congress specifically states that the federal statute is intended to preempt state law.  The second is where the federal law is so complete that it “occupies the field” of the subject of the legislation.

 In 1993 the U.S. Supreme Court decided that when Congress passed the Federal Railroad Safety Act of 1970 it intended to occupy the field of railroad safety.  In passing the F.R.S.A Congress stated that the Act was intended to promote uniformity of rail law and regulations.  However, existing state law was to remain in force until the Secretary of Transportation (acting through the FRA) adopted specific regulations in the areas in which he was authorized by the FRSA to act.

 As a result of the Supreme Court’s decision there are areas of railroad safety that are not “preempted.” An example is where the FRA has not expended sums or otherwise acted to upgrade a specific crossing.  Still, where a crossing has been upgraded by the expenditure of federal funds, an argument that is should have had more protection that was ordered by the FRA, or a state agency with FRA funding, cannot be made.

 HISTORY OF THE ONE-DOLLAR BILL

 Look at a one-dollar bill that first came off the presses in 1957 in its present design. This so-called paper money is, in fact, a cotton and linen blend with red and blue minute silk fibers running through it.  We have all washed it without it falling apart.  A special blend of ink is used, the contents we will never know.  It is overprinted with symbols and then it is starched to make it water resistant and pressed to give it that nice crisp look.

 If you look on the front of the bill you will see the United States Treasury Seal.  On the top you will see the scales for a balanced budget.  In the center you have a carpenter’s square, a tool used for an even cut.  Underneath is the key to the United States Treasury.  That’s all pretty easy to figure out, but what is on the back of that dollar bill is something we should all know.  If you turn the bill over you will see two circles.  Both circles, together, comprise the Great Seal of the United States .  The First Continental Congress requested that Benjamin Franklin and a group of men come up with a Seal.  It took them four years to accomplish that task and another two years to get it approved.

 If you look at the left-hand circle, you will see a Pyramid.  Notice the face is lighted, and the western side is dark.  This country was just beginning.  We had not begun to explore the West or decided what we could do for Western Civilization.  The Pyramid is un-capped, again signifying that we were not even close to being finished.  Inside the capstone you have the all-seeing eye, an ancient symbol for divinity.  It was Franklin ’s belief that one man couldn’t do it alone, but a group of men, with the help of God, could do anything.

 “IN GOD WE TRUST” is on this currency.

 The Latin above the pyramid, ANNUIT COEPTIS, means, “God has favored our undertaking.” The Latin below the pyramid, NOVUS ORDO SECLORUM means, “A new order has begun.”  At the base of the pyramid is the Roman numeral for 1776.  If you look at the right-hand circle and check it carefully you will learn that it is on every National Cemetery in the United States .  It is also on The Parade of Flags Walkway at the Bushnell, Florida National Cemetery , and is the centerpiece of most heroes’ monuments.  Slightly modified, it is the seal of the President of the United States , selected as a symbol for victory for two reasons.  First, he is not afraid of a storm; he is strong; and he is smart enough to soar above it.  Secondly, he wears no material crown.  We had just broken from the King of England.

 Also, notice the shield is unsupported.  This country can now stand on its own.  At the top of that shield you have a white bar signifying congress, a unifying factor.  We were coming together as one nation.  In the eagle’s beak you will read, “E PLURIBUS UNUM,” meaning “one nation from many people.”  Above the eagle you have thirteen stars representing the thirteen original colonies, and any clouds of misunderstanding rolling away.  Again, we were coming together as one.

 Notice that the eagle holds an olive branch and arrows in his talons.  This country wants peace, but we will never be afraid to fight to preserve peace.  The eagle always wants to face the olive branch, but in time of war his gaze turns toward the arrows.

 They say the number 13 is an unlucky number.  This is almost a worldwide belief.  You will usually never see a room numbered 13 or any hotels or motels with a 13th floor.  But think about this.  There are 13 colonies, 13 signers of the Declaration of Independence, 13 stripes on our flag, 13 steps on the Pyramid, 13 letters in the Latin above, 13 letters in E Pluribus Unum”, 13 stars above the eagle, 13 bars on that shield, 13 leaves on the olive branch, 13 fruits, and if you look closely, 13 arrows.

 Too many veterans have given up too much to ever let the meaning fade.  Many veterans remember coming home to an America that didn’t care.  Too many veterans never came home.  Share this information with everyone you can so they will know what is on the back of the UNITED STATES ONE-DOLLAR BILL and for which it stands.  And, MAY GOD BLESS AMERICA !

 POINTS OF LEGAL INTEREST

 Daniel B. Kenney vs. Union Pacific Railroad Company and Burlington Northern & Santa Fe Railway Company – U.S. District Court, Southern District of Texas, Case No. G-01-203.  Plaintiff was a member of a train crew that struck a huge boulder and derailed the lead locomotive.  Plaintiff filed a FELA suit alleging that the railroad failed to adequately train him in what to do in such an accident.  He also alleged the locomotive was uncrashworthy because it was not equipped with seat belts, padding or a refuge/crash box.  He sustained a herniated disc at L5-S1.  Defense counsel argued that plaintiff’s own union membership had voted against seat belts and refuge boxes and no railroad in North America provides such accommodations.  Padding on the floor would have been a violation of safety regulations and the training argument had too many variables.

Defense verdict

 Justin Clemens, a minor, by his mother and legal guardian, Dante Clemens vs. Estate of Tracy Uhl and Conrail, et al – Elkhart Superior Court, Elkhart, Indiana, No. 20D02-9804-CT-239.  A Conrail train struck a vehicle sitting on the track resulting in the deaths of Troy and Tracey (8 months pregnant) Uhl and their 3 year old son.  Trial judge grants summary judgment upon finding that the train had not exceeded the federally established 60 mph speed limit; that the locomotive engineer had sounded the whistle, and had applied the brakes and cut the throttle before striking the decedents

Truck, which was standing on the crossing tracks between properly operating closed safety gates. (Editors Note:  Federal Preemption at work.)

 Loren Lewandowski vs. Burlington & Northern and Santa Fe Railway Co., - Scotts Bluff County (NE) District Court, Case No. C101-50.  While working on a bridge plaintiff slipped on the creosote of a crosstie and fell approximately 25 feet to a rocky creek bed sustaining multiple leg and foot injuries, bulging and herniated discs.  Plaintiff alleged failure to provide fall protection and the railroad accepted liability for the accident.  The issue of damages was hotly contested on the issue of lost wages, as well as pain and suffering.  Jury verdict in the amount of $4,031,219.00

 Daniel Brinson vs. Consolidated Rail Corporation – U.S. Court of Appeals for the Second Circuit, Case No. 01-7448.  Plaintiff was working as a brakeman and sustained an injury while throwing a switch.  The District Court granted summary judgment, concluding that the plaintiff had not adduced any evidence of railroad negligence and the U. S. Court of Appeals confirmed.

 The answer to the first perseverance question is Abraham Lincoln.

The second answer is Kentucky Fried Chicken Founder Colonel Harlan Sanders.

 THE FOLLOWING IS FROM OUR FRIENDS AT THE NATIONAL ASSOCIATION OF RAILROAD TRIAL COUNSEL, AS PRINTED IN A RECENT NEWSLETTER

 “From Randal Little, zee boss of Railway Claim Services we have just received a copy of a two-page article published in Claims Magazine about the “Black Boxes” in certain GM motor vehicles (also known as SDM modules) which supposedly contain valuable crash data that can be used to help reconstruct vehicular collisions.  These two pages plus another page from Applied Technical Services of Georgia (who say they can economically gather the SDM information and provide expert assistance in interpreting the data) can be yours for $1.50 sent here.  Meanwhile …. Randal Little is interested in hearing from any lawyers who have “experience” in dealing with these vehicle Black Boxes.  Please contact him if you have experience.  We regularly cooperate with him—and he with us.  Contact:  J. Randal Little, Director-Operations, Railway Claim Services, 52 South Main Street , Lexington , Tennessee 38351 .  Telephone 731-967-1776.  Fax 731-967-1788.  Email:  randal_little@railway-claim-services.com.  Web site:  www.railway-claim-services.com.  Thank you!”

 Diagnostic Modules (Black Boxes) in automobiles are new technology which hopefully will allow railroads to defend against some unwarranted claims.  Please let us know of your personal experiences or share articles you read where this technology is used.  We will share this information across the legal and claim segments of the rail industry.

 RCSI welcomes your input.  If you have questions or comments of interest to our industry, please contact Dave Gardner or Randal Little at the email addresses or phone numbers below.

 Editor’s Note:  If you prefer to receive future editions of this newsletter via email, please send an email with that request.  Email distribution is quicker and saves postage and handling.

 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?

 For more information you can contact:         

Dave Gardner (dave_gardner@railway-claim-services.com)

Randal Little (randal_little@railway-claim-services.com)

52 South Main Street

Lexington , Tennessee 38351

1-800-786-5204         

FAX (731) 967-1788