ON TRACK WITH RAILWAY CLAIM SERVICES, Inc.

Volume 9 Issue 4                                                              October, 2003

RAILWAY CLAIM SERVICES, INC.         Our 16th Year of Service

A PERSONAL NOTE FROM THE EDITOR

QUOTABLE QUOTES

THIS AND THAT ACROSS THE COUNTRY

CLASS-ACTION SUITS

TRIVIA, OR LITTLE KNOWN RAILROAD FACTS

QUARTERLY TOPIC

POINTS OF LEGAL INTEREST

RCSI INFORMATION

RCSI’S CROSSING ACCIDENT CHECKLIST

A PERSONAL NOTE FROM THE EDITOR

Mike Redden is the resident editor of this newsletter, but Mike has been recovering from on-going medical problems, thus this edition finds influences from a number of sources.  We hope you find it in keeping with the quality and care Mike gave it.  We continue to extend our love, our prayers and our thoughts to Mike and his wife Linda during his period of convalescence.

QUOTABLE QUOTES

It is not the critic who counts, not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man in the arena, whose face is marred by dust and sweat and blood, who strives valiantly...who knows the great enthusiasms, the great devotions, who spends himself in a worthy cause, who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who have known neither victory nor defeat. Teddy Roosevelt

If they ply you with expensive gifts and sweet talk, they are up to something.  Li Quan, from the book, The Art of War

When you get to the end of your rope, tie a knot and hang on.  Franklin D. Roosevelt

He was a bold man who first ate an oyster.  Jonathan Swift

There is only one thing about which I am certain, and that is that there is very little about which one can be certain.  Somerset Maugham

British Prime Minister Winston Churchill will always be remembered for his quick wit and lively comebacks.  Someone once remarked to him, “Who would want to live to be 90?”  And Churchill is said to have replied:  “Everyone who is 89.”

THIS AND THAT ACROSS THE COUNTRY             

TORT REFORM ACROSS THE COUNTRY:  In July of this year the American Tort Reform Association (www.atra.org) announced that at least 20 states have enacted some sort of tort reform thus far in 2003, making this the most successful year for state tort reformers since 1995. Texas was the most active, according to ATRA's semiannual Tort Reform Record. Texas passed a comprehensive tort reform law that reformed the imposition of joint and several liability, medical liability reform and punitive damage reform, ATRA said. Texas lawmakers are now tackling asbestos liability reform. ATRA also cited Arkansas , Idaho and West Virginia as states that passed comprehensive reforms. In a statement accompanying the release of the report, ATRA President Sherman Joyce cited "the changing political landscape in the states, the growing consumer awareness of how our civil justice system hurts the economy and the ongoing medical liability crisis" as factors driving state reforms.  The entire report is available at www.atra.org.

FRA - RAILROAD PEDESTRIAN STATISTICS ON FATALITIES:  There were 511 pedestrians killed by trains in the U.S. in 2001, the latest year for which numbers are available, according to the Federal Railroad Administration.  That is up from 463 in 2000 and the highest since 1998 when 563 pedestrians were killed by trains. 

DOT STUDY REPORTS INJURY STATISTICAL INFORMATION:  A recent survey conducted by the U.S. Department of Transportation indicated that 2.92 million individuals were injured in car crashes in 2002, down from 3.03 million in 2001.  During the same period, however, highway fatalities increased from 42,196 to 42,815.  Fatalities in rollover crashes were up five percent, and the number of people killed in SUV rollovers increased 14 percent.  Of all SUV fatalities, 61 percent involved rollovers.  THE DOT attributes the reduction in injuries to tougher federal standards and improved vehicle designs.

2003 AAR GENERAL CLAIMS CONFERENCE MEETING:  The 2003 edition of the Association of American Railroad General Claims Conference, hosted by the Canadian Pacific Railroad, was held in Kananaskis Village , Alberta on September 17-19, 2003 .  The program was excellent, with timely topics and authoritative presenters.  I am confident that all of the attendees and those they represent will continue to benefit significantly from attending this conference.  Next year CSXT will be the host, and the location will be in Ponte Vedra , Florida , the site of the 1995 meeting of this group.

SPOLIATION:  In the last issue of this newsletter I wrote the following on this topic:  “Spoliation is the destruction or meaningful alteration of evidence or potential evidence that interferes with a litigant’s ability to prove his or her case.  Three significant verdicts within the railroad industry, within the last twelve months, have made spoliation a hot issue.  . . . it is important to make sure that records following railroad accidents/injuries are retained in accordance with 49 C.F.R., Parts 200 through 268.” 

Spoliation is so critical in the current railroad litigation area that all major railroads are going to extraordinary measures to assure that “no records are lost” where there are accidents or injuries of any significance whatsoever.  These railroads have assigned the tasks of assimilating and preserving evidence to specially trained staff.  Railway Claim Services, Inc. will make every effort to work with you to assure that all records are maintained in the event of an accident or injury.

Although this is a railroad industry problem it cuts across businesses in general.  Where there are records to be had these records MUST be preserved, or the courts may determine that the railroad failed to secure and protect the records, which is spoliation.  This could result in a jury instruction to the jury that “. . . you may infer that the evidence is unfavorable to the party who could have produced it and did not.”

CATASTROPHIC LOSSES:  U.S. property and casualty insurers are expected to pay policyholders an estimated $4.9 Billion for insured property loss claims from four catastrophic evens in the second quarter of 2003, according to Property Claim Services.  That figure represents the second-highest second quarter in losses in the last 10 years.

WORLD TRADE CENTER RULING:  In case you have not followed this, there has been an on-going effort by the leaseholders of the WTC to get the terrorist disaster of September 11, 2001 declared two events, which would provide expanded insurance coverage.  On September 26, 2003 the 2nd U.S. Circuit Court of Appeals in New York turned down Silverstein Properties’ (the leaseholders) request for summary judgment, providing a setback in their quest for coverage under two separate occurrences.   The difference in one occurrence and two is $3.55 Billion if only one occurrence, and $7.1 Billion if there is a finding of two occurrences.  In July 2001, Silverstein Properties and an associate firm, Westfield Properties, signed a 99-year lease with the Port Authority of New York and New Jersey to manage the World Trade Center . Because no formal insurance contract was in place by the time the complex was destroyed on September 11, 2001 , Silverstein and the insurers have disputed which set of binder forms is to be considered relevant to the coverage.  File this one under the ever changing insurance law heading.  Although this will have an immediate affect on the parties involved, it could eventually affect many business coverage issues.

CLASS ACTION SUITS

In the last issue of this newsletter I told you that Class-Action lawsuits are becoming more widespread in the USA , and that the Federal Trade Commission was now challenging three suits, targeting in part the 50% attorney fees.  We also identified a number of high profile cases, and presented the plaintiff trial lawyer’s view, and I will restate that view here before I continue.  The Association of Trial Lawyers of America (ATLS) argues that judges have the power to overturn bad settlements, so the FTC would be better off spending its time addressing wrongs more serious than excessive attorney fees. 

Madison County, Illinois is the scene of the latest class-action lawsuit battle front, with Gridley v. State Farm Insurance.  This is a class-action suit over allegedly fraudulent automobile titles, stemming from the sale of a car in Louisiana .  The case stems from the sale at an auction in 1999 of a four-door Volvo to Christopher K. Gridley of Denham Springs , Louisiana .  Five months after the sale a mechanic discovered signs that the car had been damaged in a major accident before Gridley bought it.

About 75 class-action suits were filed in Madison County in 2002 alone.  Some of those suits, and other class-action lawsuits previously filed in Madison County , have drawn national attention because of the size of the judgments and, in some cases, the apparent lack of obvious connection to Madison County .

Important in the Gridley case is that the U.S. Chamber of Commerce, Sears, Caterpillar and numerous insurance companies are weighing in with State Farm.  State Farm filed a motion arguing that Madison County was not the proper venue for this suit.  State Farm claimed in documents filed with the Courts that “Every one of the alleged events . . . took place in Louisiana , and all of the witnesses and records related to those events likewise are located in and connected with Louisiana ”.  State Farm’s national headquarters, the documents further advance, is in Bloomington , Illinois , in central Illinois , and nowhere near Madison County .

The plaintiffs say in court documents that Madison County is the proper venue because two Madison County residents who previously worked for State Farm will be called to testify about how State Farm handles salvage titles.  The plaintiffs also argue that because State Farm is so prevalent in the insurance industry the suit can be filed just about anywhere.

In reaching its decision in this case the seven justices of the Illinois Supreme Court will consider a series of friend-of-the-court briefs, mostly from national companies or business groups, contending that the issue is about more than automobile titles.

A brief filed by the U.S. Chamber of Commerce states that in Madison County the litigation industry “profoundly threatens the interest of business in Illinois and nationally and ultimately undermines the economy of the state.”   But plaintiffs’ attorneys say the debate is actually about big business trying to thwart legitimate lawsuits by injured consumers.

The Gridley plaintiff case is now being advanced by the Korein & Tillery law firm, which recently drew national attention by winning a $10.1 billion judgment, in Madison County , against Phillip Morris USA in a class-action suit alleging that light cigarettes were deceptively advertised.

Madison County has long been a troublesome venue for railroads, with verdicts in the extreme, higher than any other venue.  Recent comments made by non-railroad industry leaders and defense attorneys that Madison County has a “litigation industry” is restating a fact that has been well known by railroad industry claim and legal representatives. 

Will the new attention brought by Gridley be the beginning of the end of Madison County, Illinois as a litigation industry?  In the opinion of the writer the answer is “No”.  There may be some limitations, temporarily.  I recall the Espinoza v. N&W (Illinois Supreme Court, circa 1980) decision that “temporarily” ceased the long-distance venue selection of Madison County and St. Clair County, Illinois by railroad plaintiff attorneys.  But, alas, as the old saying goes, “the more things change, the more they stay the same.”

TRIVIA, OR LITTLE KNOWN RAILROAD FACTS:

Andrew Jackson was the first United States President to ride on a railroad train. He journeyed from Ellicott's Mills, MD to Baltimore , MD over the Baltimore & Ohio on June 6, 1833 .

“LOCOMOTIVE”, origin of the word.  When the steam engine was put on wheels and made to run on rails (1804 - 1825) it was called a "locomotive engine" --that is, a traveling engine--because it could move from place to place under its own power (locomotion). Later it became simply a "locomotive" or an "engine" and both terms have been in common use for many years.

RAILROAD FOOD:  The golden age of railroad travel lasted for roughly 75 years starting in 1868 with the introduction of the first dining car (named Delmonico in honor of the N.Y. restaurant). Railroad competition was so great that the best food possible was served regardless of cost. The menu included terrapin stew, scrod and Cotuit oysters, broiled sage hen and aged Kansas City beef.  Fred Harvey was in charge of food on the Santa Fe line and supposedly fired a dining car manager who was only losing $500 per month on food, and replaced him with a man who was able to lose $1,500 a month!  Compare that attitude with the food situation you find on today’s airlines!

QUARTERLY TOPIC  -  This quarter’s topic comes in the form of a checklist, and is included at the end of this Newsletter.

POINTS OF LEGAL INTEREST

New Orleans Public Transit System Minor Passenger, Crushing Injury to Right Forearm, $51.4 Million Judgment.  On August 29, 2003 , a New Orleans Civil District Court jury awarded $51.4 Million on top of $2 million already paid to the family by the Regional Transit Authority and Transit Management from its self-insurance fund.  Court records show the family also received money under separate settlements with the company that manufactured the streetcar.  The accident occurred following an incident after the family chartered the streetcar for a birthday party.  In 1998 the injured minor, Shannon Schweitzer, was 5 years old when she was injured after falling from a window of the chartered streetcar during a rolling birthday party.  During the trial it was estimated that the girl had undergone 29 major surgeries to rebuild her arm, at a cost of more than $1.5 million, and that she could face dozens of additional surgeries, costing as much as $2 million, as she grows up.  Johnnie Cochran represented the family.  Robert Kerrigan represented RTA and Transmit Management, Family of Shannon Schweitzer v. RTA and Transmit Management, Civil District Court, New Orleans , Louisiana .

Gang Foreman Awarded $29.7 Million in New York , Fall from Transformer Results in Permanent Paraplegia.  The plaintiff, an employee of Long Island Railroad (LIRR) with fourteen years' experience as a gang foreman, was injured on February 17, 2000 when he fell from a transformer platform.  Plaintiff struck his head on a beam, stumbled, then ultimately fell nine feet to the concrete floor below.  He sus­tained paralyzing injuries from the fall with injuries that resulted in paraplegia from the waist down.

The defendant LIRR alleged that the plaintiff had residual blood alcohol content level of .05 to .06.  The plaintiff argued this was slight and effects were minimal.  Also the plaintiff argued that the cause of injury to the plaintiff was the fall, and alcohol had no causal connection to his fall.

The trial began on June 20, 2003 , and was bifurcated on liability and damages.  The trial resulted in a finding of 80 percent against LIRR, and 20 percent contributory negligence against the plaintiff, with a total plaintiff verdict of $29,725,468.  Antonio Cruz v. Long Island Rail Road , Queens County (NY) Supreme Court, Index No. 1603 8-2000.  Emil R. DiNardo and Daniel R. Metschi, Buffalo , NY for the plaintiff.  Wil­liam J. Blumenschein, Long Island Railroad Law Department, for the defendant.

Locomotive Engineer Suffers Cervical, Back and Shoulder Injuries During Train Derailment, $4.1 Million Jury Ver­dict in Missouri .  Locomotive Engineer Patrick Johnson, age forty-four, was alleged injured when a Union Pacific train derailed as a result of a broken rail.  Plaintiff’s attorney presented at trial that Johnson suffered a ruptured cervical disc that resulted in surgery, which prevented his return to work.   Union Pacific presented in trial that Johnson refused vocational rehabilitation services that would have reduced the railroad's liability under FELA.  Johnson argued that the voca­tional rehabilitation program was not legitimate, but was set up only as a defense for the trial.  Johnson v. Union Pacific Railroad Co., St. Louis City (MO) Circuit Court, Case No. 012-9470. Jerome Schlichter, St. Louis , MO for the plaintiff.

Engineer Slips on Locomotive Walkway, $800,000 Settlement in New York .  The plaintiff was employed by the Grand Trunk Western Railroad (GTW) as a locomotive engineer when he was injured on July 19, 1999 .  Twenty-eight year-old Locomotive Engineer Dallas allegedly slipped and fell on metal bolts that were left on the walkway of an engine undergo­ing repair.  He underwent multi-level disc fusion and was unable to return to work as a locomotive engineer.  GTW claimed that the plaintiff was the sole cause of his accident and injury, and that he failed to mitigate his damages.   The case was settled for $800,000 two weeks prior to trial.  Douglas Dallas v. Grand Trunk Western Railroad, Incorpo­rated, Case No. 01-73840.  Steven L. Kantor, Buffalo , NY and Art Sadin, Friendswood , TX for the plaintiff. Gregory Clifton, Detroit , MI for the defendant.

Tractor-Trailer Failed to Yield to Train, Injuries to Conductor, $569,222 Texas Verdict Against Tractor-Trailer Owner Only, Finding of No Negligence against Union Pacific. The 41 year-old plaintiff, Cecil R. Moses, was injured when his train collided with a tractor-trailer on July 31, 2001 .  Moses sued for negligence in failing to provide a safe place to work.  Union Pacific contended that the accident was caused by the Tractor-Trailer driver who failed to yield the right of way to the oncoming train. UP maintained that the tractor-trailer operator failed to "stop, look and listen" for a train when he approached the railroad crossing.  Moses suffered herniated discs which required a two-level cervical disc fusion. According to Verdict Search Texas Re­porter, the jury found that Texoma was one-hundred percent negligent and awarded Moses at total of $569,222.  Cecil R. Moses v. Union Pacific Railroad Company and Texoma Module Movers, Inc., Harris County (TX) District Court, Case No. 2001 -52138. David Miller and Steve Young, Houston , TX for the plain­tiff. Doris Beutel-Guthrie, Union Pacific Railroad Company, Houston , TX for the railroad. Nicholas A. Brady and C. Tynan Buthod, Houston , TX for the defendant Texoma Module Movers, Inc.

Ticket Agent Moving Packages Suffers Lumbar Disk Herniation, $450,000 Settlement in District of Columbia .  The plaintiff allegedly injured his back on September 5, 1998 while employed as a ticket agent/clerk at the Jackson Mississippi Amtrak station.  The plaintiff made ADA requests for accommodations to AMTRAK, which were de­nied, and he was medically disqualified from returning to railroad service.  Suit was brought in Washington , DC , and motions to dismiss forum non-conveniens were overruled. Settlement for $450,000.  Greene v. National Railroad Pas­senger Corporation (AMTRAK), District of Columbia (DC) Superior Court. Larry W. Lockwood, Jr. and Francis P. Hajek, Virginia Beach , VA for the plaintiff.  Joseph S. Crociata and Andrew Cupit, Bonner, Kierman, Trebach and Crociata , Washington , DC for the defendant.

Employee Falls in Snow on Parking Lot Surface, $261,000 Verdict in Illinois . The plaintiff alleged that during a snowstorm the employer failed to take steps to plow the employee parking lot surface.  According to the plaintiff snow continued to accumulate, and five hours after the end of the snowfall the plaintiff suffered injury when he slipped and fell.  The defendant alleged contributory negligence in that the plaintiff failed to avail himself of protective footwear such as rubbers with chains or spikes.  The jury awarded the plaintiff $261,000.  Bruce L. Hartman v. Northeast Illinois Regional Commuter Railroad a/k/a Metra, Cook County (IL) Circuit Court, Case No. 98 L 15103.  Scott C. Sands, for the plaintiff. Charles A. LeMoine, Rooks, Pitts and Poust, for the defendant.

RCSI welcomes your input.  If you have any questions or comments of interest to our industry, please contact either Dave Gardner or Randal Little at (731) 967-1796 or FAX your message to (731) 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?

For further information contact:

dave_gardner@railway-claim-services.com or  randal_little@railway-claim-services.com

Corporate Offices at:   52 South Main Street     Lexington , Tennessee   38351

Phone:  800-786-5204, Fax:  731-967-1788 or visit us on the Web at www.railway-claim-services.com

Railway Claim Services, Inc. has offices THROUGHOUT THE UNITED STATES.

 


Railway Claim Services, Inc.’s

Checklist for the ‘Basic’ Crossing Accident Investigation©

 

The following checklist is not intended to be an exhaustive listing of all things that could be done in the event of a crossing accident, but if followed it should provide the foundation for the basics of an investigation.

            It is recommended that this checklist be utilize only on accidents of a minor nature.  Railway Claim Services, Inc. (800-786-5204) is available nationwide to perform a limited or extensive investigation on all crossing accidents.

___      Visit the scene of the accident.

___      Make a sketch of the crossing, placing all landmarks in their proper position with accurate measurements noted.

___      Make photos in the following manner:

            (For explanatory purposes we will assume an accident has occurred.  Train traveling south.  Auto traveling west.)

   - One photo at 15 feet from the east rail, as the auto would approach, looking north (in the direction     from which the train approached).

             - Panoramic photos at 50 feet from east rail, looking west to north (This will usually take 3-4 photos.)

 - Panoramic photos at 75 feet, 100 feet, 200 feet, 300 feet, 400 feet, etc. from the east rail.  Photos should be made as far back as they are useful in demonstrating visibility of the crossing for the approaching motorist.

            - Single photos at 50 feet from the crossing (Use east and west rail, and edge of road on each side to                determine distances from the crossing.), looking north, south, east and west.

            - One photo of the crossing surface.

            - One photo of the advance warning disk.  (Measurements of this should be noted on the sketch.)

            - Photos of skid marks, if any.

            - If the train has not been moved when the investigator arrives at the scene photos should be made of                the position of  the train.  This may be used later to document speed.

            - Do not make photos of bodies or body parts, etc.  These have no bearing upon the cause of the                accident.

            - Make photos of the automobile.  The four sides, front, back, left, right, are the basic photos.  Other                   photos to consider might be: dirty or broken windshield, bald tires, high odometer readings,                   speedometer stuck at a speed, etc.

            - Make photographs of the locomotive, especially if there is physical evidence of the collision, or a                claim for damages against the motorist is anticipated.

___      Tape-recorded statements should be secured from all eye and/or ear witnesses.  It is important to take negative statements (By negative we mean statements of persons who state they did not hear or see the accident, but were or had reason to be in the area at the time of the accident.)

___      Employees should complete a standardized crossing accident report, but employees should not provide    statements.         

___      Secure a tape-recorded statement from the driver of the auto and any passenger(s) if possible.

___      The signal maintainer should make a thorough check of all signal systems immediately after the accident occurred. Documentation of this inspection, as well as documentation of previous inspections should be made.

___      A copy of the signal maintainer's records should be made a part of the investigation file.

___      A copy of the train consist should be secured and made a part of the investigation file.

___       A copy of the police report should be secured and made a part of the investigation file.

___      Assure that a download is made of any event recording devices is made, take possession of these, maintaining an appropriate chain of custody.

___      Secure all records, to include locomotive inspection records, signal inspection and track repair and inspection records.  Maintain all records as a part of the investigation file.

___      A copy of photos made by the police department or news media should be secured and made a part of the investigation file.

___      A copy of the local paper should be secured.  This will document the weather conditions at the time of the accident, and demonstrate the publicity generated by the accident.  It may also identify potential witnesses.

___      Locate whistle post and make a notation of distance from crossing.  A photograph of the whistle board is optional.

___      Canvass the general area of the accident location for potential witnesses.  In all crossing accidents of any consequence a neighborhood search should be conducted to locate potential witnesses.  This should be done as soon after the accident as possible, and repeated at the approximate time of the accident the day after the accident occurred.  A tape-recorded statement should be made of any witnesses identified.

___      Record DOT number for future reporting.

___      Secure a copy of the current timetable and make it a part of the investigation file.

___      Make a photo copy of the track profile page to use as part of the investigation file.