ON TRACK WITH RAILWAY CLAIM SERVICES, Inc.

Volume 9 Issue 2                                                             April, 2003

 RAILWAY CLAIM SERVICES, INC.                          Our 15th Year of Service

MESSAGE FROM THE EDITOR

FRANCE

POINTS TO PONDER

TRIVIA AND HUMOR

THIS AND THAT ACROSS THE COUNTRY

QUOTABLE QUOTES

CLASS-ACTION SUITS

INSURED PROPERTY CATASTROPHES

QUARTERLY TOPIC

POINTS OF LEGAL INTEREST

RCSI INFORMATION

 

FROM THE EDITOR

Life and good health are precious gifts that should not be taken lightly.  After an absence of seven months due to open-heart surgery, it is good to be back.  I was in four different hospitals for four months and my medical exceeded $1,000,000.  During my convalescence I also had cataract surgery on both eyes and oral mouth surgery.  Prior to this I had two additional heart surgeries and cancer.  My philosophy is "I'm going to live if it kills me".  But for the prayers that were lifted up on my behalf, I would not be here today, doing what I dearly love – working for Railway Claim Services.

There are no words that can do justice in describing how I feel about Randal Little and all the ones associated with Railway Claim Services.  While I am not yet 100%, I am well enough to come back to work with some restrictions.  The fact that my job was still available is truly a blessing.  I hope you enjoy reading this newsletter as much as I enjoy compiling it every three months. 

On a different note, we may be in a war when this newsletter goes to print at the end of this month.  Let's all remember and pray for our military.  Once again, the world is looking for the United States to bail them out.

And what about France ?  Read on below for some opinions.

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

John 3:16    For God so loved the world, that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life.

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

  FRANCE

France has neither winter nor summer nor morals.  Apart from these drawbacks it is a fine country.   France has usually been governed by prostitutes.   Mark Twain

I would rather have a German division in front of me than a French one behind me.  General George Patton

Going to war without France is like going deer hunting without your accordion.  Norman Schwartzkopf

We can stand here like the French, or we can do something about it.  Marge Simpson

As far as I am concerned, war always means failure.  Jaacques Chirac, President of France .   As far as France is concerned, you're right.   Rush Limbaugh

The only time France wants us to go to war is when the German Army is sitting in Paris sipping coffee.  Regis Philbin

Next time there's a war in Europe , the loser has to keep France .  Anonymous

You know, the French remind me a little bit of an aging actress of the 1940s who was still trying to dine out on her looks but doesn't have the face for it.  John McCain, U.S. Senator from Arizona

You know why the French don't want to bomb Saddam Hussein?  Because he hates America , he loves mistresses and wears a beret.  He is French people.   Conan O'Brien

I don't know why people are surprised that France won't help us get Saddam out of Iraq .  After all, France wouldn't help us get the Germans out of France .  Jay Leno

The last time the French asked for more proof it came marching into Paris under a German flag.  David Letterman

 POINTS TO PONDER:

 Success without honor is an unseasoned dish; it will satisfy your hunger, but it won't taste good.  Joe Paterno, coach.

Minds are like parachutes-they only function when open.  Thomas Dewar, chemist and physicist.

A man begins cutting his wisdom teeth the first time he bites off more than he can chew.  Herb Caen , journalist

When I was a boy of 14, my father was so ignorant I could hardly stand to have the old man around.  But when I got to be 21, I was astonished at how much the old man had learned in 7 years.  Mark Twain, writer

At least half of the exercise I get every day comes from jumping to conclusions.  Bruce Dexter, journalist

The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.  William Arthur Ward, educator

There are always a lot of people so afraid of rocking the boat that they stop rowing.  We can never get ahead that way.  Harry S. Truman, 33rd U.S. President.

Be who you are and say what you feel 'cause people who mind don't matter and people who matter don't mind.  Theodore Seuss Geisel, writer

Ever notice that the people who say "that's the way the ball bounces" are usually the ones who dropped it?   Jeff Roven

 TRIVIA & HUMOR:

Abraham Lincoln was elected to Congress in 1846.  John F. Kennedy was elected to Congress in 1946.

Abraham Lincoln was elected President in 1860.  John F. Kennedy was elected President in 1960.

The names Lincoln and Kennedy contain seven letters.

Both were particularly concerned with civil rights.

Both wives lost a child while living in the White House.

Both Presidents were shot on a Friday.

Both Presidents were shot in the head.

Lincoln 's secretary was named Kennedy.  Kennedy's secretary was named Lincoln .

Both were assassinated by Southerners.

Both were succeeded by Southerners named Johnson.

Andrew Johnson who succeeded Lincoln was born in 1808.  Lyndon Johnson who succeeded Kennedy was born in 1908.  John Wilkes Booth, who assassinated Lincoln , was born in 1839.  Lee Harvey Oswald, who assassinated Kennedy was born in 1939.

Both assassins were known by their three names.

Both names are composed of fifteen letters.

Lincoln was shot at the theater named "Ford."  Kennedy was shot in a car called " Lincoln ."

Booth ran from the theater and was caught in a warehouse.  Oswald ran from a warehouse and was caught in a theater.

Booth and Oswald were assassinated before their trial.

And here's the kicker.

A week before Lincoln was shot, he was in Monroe , Maryland .

A week before Kennedy was shot, he was with Marilyn Monroe.

Will Rogers died in a plane crash with Wylie Post in 1935.  He was probably the greatest political sage this country has ever known.  The following are some of his quotes.

Never slap a man who's chewing tobacco.

Never kick a cow chip on a hot day.

There are 2 theories to arguing with a woman…neither works.

Never miss a good chance to shut up

Always drink upstream from the herd.

If you find yourself in a hole, stop digging.

The quickest way to double your money is to fold it and put it back in your pocket.

There are three kinds of men.  The ones that learn by reading.   The few who learn by observation.  The rest of them have to pee on the electric fence.

Good judgment comes from experience, and a lot of that comes from bad judgment.

If you're riding ahead of the herd, take a look back every now and then to make sure it's still there.

Lettin' the cat outta the bag is a whole lot easier'n puttin' it back.

And finally.  After eating an entire bull, a mountain lion felt so good he started roaring.  He kept it up until a hunter came along and shot him.  The moral:  When you're full of bull, keep your mouth shut.

HEADSTONE HUMOR

In a Thurmont, Maryland cemetery:  Here lies an Atheist, all dressed up and no place to go.

In a London , England cemetery:  Here lies Ann Mann, who lived an old maid but died and old Mann Dec. 8 1767 .

In a Ruidoso, New Mexico cemetery:  Here lies Johnny Yeast.  Pardon him for not rising.

In a Silver City, Nevada cemetery:  Here lays the Kid.  We planted him raw.  He was quick on the trigger but slow on the draw.

A lawyer's epitaph in England :  Sir John Strange.  Here lies an honest lawyer, and that is Strange.

John Pennys' epitaph in the Wimborne, England cemetery:  Reader, if cash thou art in want of any, dig 6 feet deep and thou wilt find a Penny.

Lastly, from Boot Hill in Tombstone , Arizona :  Here lies Lester Moore.  One slug from a 44, No Les—No more.

THIS AND THAT ACROSS THE COUNTRY               

General Claims Conference Twenty-Sixth Annual Meeting, September 17 – 19, 2003 , Delta Lodge at Kananaskis, Kananaskis Village , Alberta Canada .  Situated in the heart of Canada 's Rocky Mountain 650 miles Northwest of Calgary.

For further information, please call Roger L. Schrenk at (651)772-5917.

2003 Railroad Claims School , May 19 – 23, Lawrence Technological University (LTU), cost $550.00 per student with a "buy one get one free" offer.  The school is limited to 30 students and the cost includes a continental breakfast, catered lunch and all curriculum materials.  Dinner, lodging and transportation will be the responsibility of the student.  For more information contact Ms. Michele Vanootinghem, (248) 204-4020

How to calculate your safety record:  For employees governed by FRA hours-of-service rules, multiply the number of reportable incidents by 200 and divide the result by total hours in thousands.  If you're under 2.0 and can show evidence of a commitment to stewardship improvement. Let your customers know what you can do.  If you're above that, it's time to clean up your safety act and practice your plans.

QUOTABLE QUOTES

I got the bill for my surgery.  Now I know why those doctors were wearing masks.

A jury should decide a case the minute they are sworn in, before the lawyers have had a chance to mislead them.

Remember that a kick in the ass is a step forward.

A lawyer and a wagon-wheel must be well greased.

A jury consists of twelve persons chosen to decide who has the best lawyer.

If you tell the truth, you don't have to remember anything.

If you have the facts, you pound the facts…If you have the law, you pound the law…If you have neither, you pound the table.

Some people don't have much to say, but you have to listen a long time to find it out.

The biggest sin is sitting on your ass.

CLASS ACTION SUITS

When consumers harmed by wrongdoing join together to sue for damages, they don't expect to walk away with discount coupons worth a few bucks while their lawyers collect fat fees.  Yet, increasingly, that has been the outcome of class-action cases.  A decade ago, major airlines settled a huge price-fixing lawsuit brought on behalf of passengers by giving fliers airfare-discount coupons that included major restrictions.  Meanwhile, the consumers' attorneys collected $16 million.  The story is similar in cases ranging from cereals treated with pesticides to fraudulent mortgage schemes.

Class-action suits, when applied correctly, benefit those who can't afford to sue individually but can be a potent force when they band together.  Too often, though, the i nju stices committed against consumers are compounded by the actions of their lawyers, who put their own welfare ahead of their clients' needs.  Now consumers are gaining powerful allies fighting to protect their interests in price-fixing, fraud or product-liability cases.  In recent months, the Federal Trade Commission (FTC) has swooped in to challenge settlements in three suits.  It got one deal tossed out, won a 50% cut in lawyers' charges in another and fought a hefty legal fee in a third.  Currently, the FTC is monitoring the outcomes of dozens of other class-action cases, with an eye toward thwarting unfair deals.  Consumers are getting help on the state level, too, as attorneys general in Illinois , Wisconsin and New York weigh in to battle for better settlements.

The high-level intervention comes as fighting between lawyers and business has stalled efforts in Congress to rein in exorbitant attorney fees.  And it's proving to be a powerful counterbalance when settlements of class-action lawsuits rob consumers of fair damages.  Consider:

In Illinois , where Ameritech was accused of failing to disclose add-on fees when selling a voice-mail service, the FTC helped persuade a judge to reject a coupon settlement that was more likely to benefit Ameritech than consumers.  The judge also tossed out $971,000 in attorneys' fees as "excessive and unreasonable."

In Washington , where a suit accuses a medical-data company of overcharging businesses and physicians, the FTC argued that lawyers who filed the case simply piggybacked on work already done by the federal agency at taxpayers' expense.  The judge agreed and cut in half the $5 million in fees sought by the private lawyers.

In New York , the state attorney general is asking a federal magistrate to reject a settlement with a lender accused of peddling fraudulent, high-cost mortgage loans to low-income homeowners.  The reason:  The proposed settlement would provide minuscule payouts while leaving homeowners exposed to foreclosures.

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.  ATLA misses the point.  Token settlements and high fees benefit everyone involved in class-action suits except the damaged parties.  If judges and lawyers aren't looking out for their interests, consumers can at least count on the FTC and state attorneys general to make sure they're treated fairly.

INSURED PROPERTY CATASTROPHES

Insured property damage from catastrophes last year will total about $5.8 billion, according to preliminary estimates released by the Insurance Services Office Inc.'s Property Claim Services unit.  That makes 2002's total the lowest in that last 10 years, although ISO cautions that the final figure could change, because PCS is resurveying its estimates for several catastrophes.  According to PCS, 25 catastrophes-which PCS defines as events that cause at least $25 million in insured property damage and that affect a significant number of insurers and policyholders-occurred last year, generating about 1.8 million claims.  In contrast, the average annual number of catastrophes over the past 10 years is 32, generating $11.5 billion in total insured property damage.

According to PCS, 40 states suffered catastrophes last year.  Among them, Kentucky sustained the highest insured property loss, at $885 million; followed by Texas , $630 million; and Louisiana , $555 million.  PCS also released loss figures for the fourth quarter of 2002, during which catastrophe-related insured property damage reached an estimated $1.7 billion, the second-highest loss for any fourth quarter in a decade.  Last year's relatively low loss total follows 2001's record $28.1 billion in insured property damage, a figure that reflects losses stemming from the Sept. 11 terrorist attacks.

QUARTERLY TOPIC  -  "Dealing With Uninvited Guests"

There are three categories of people who might be encountered on railroad property.  They are Trespassers, Invitees and Licensees.  And while the book definition of each of these is "black and white", the definition recognized by the courts encompasses various shades of gray.  Let us examine the book definitions first.

Trespasser – Someone who has no business on railroad property, no consent to be on railroad property and whose presence on railroad property is unknown and unexpected.  The railroad owes no duty to a trespasser other than to refrain from wantonly or willfully causing i nju ry to him.  Examples might include a drunk who falls asleep on the tracks or a hunter crossing the tracks far from any known crossing.  As we will examine later though, there are exceptions that could change even their status.

Invitee – Someone who has business on railroad property, or consent to be on railroad property, or consent to be on railroad property and whose presence 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.

Licensee – Someone who has business on railroad property, consent to be on railroad property, and whose presence on railroad property is both expected and known.   The duty owed by the railroad is again that of reasonable and ordinary care.  An example of this would be a contractor.

As you can see, the definition for Invitee and Licensee is very similar.  The primary difference is whether they are on railroad property for their own purpose (Invitee) or for the mutual benefit of both themselves and the railroad (Licensee). Most outsiders involved in accidents on railroad property (other than crossing accidents) fall into the definition of trespasser.  This is when the black and white textbook definition begins to fade to gray.  The courts allow three exceptions to the strict trespasser definition.  They are as follows.

1.  When the trespasser is a child.  This brings up another definition, that of "child".  What is a child?  Most, if not all states, recognize the inability of children under the age of seven of distinguish danger.   The age at which this inability to distinguish danger ends, varies from state to state.  I would strongly suggest that you talk with your local counsel to determine the age appropriate for your area.  When accidents harm children, juries habitually disregard such trivialities as negligence and liability.  They look for any reason to award money to the child, especially if the child has suffered amputation, brain damage or any other severe i nju ry.  The reasons they most often evoke are either "attractive nuisance" or "dangerous instrumentalities".  An "attractive nuisance" could be an abandoned railcar or abandoned building that a child might see as a clubhouse.  It could also be a bridge where children congregate to look at the fish.   Anything that can attract the attention of a child and cause harm could be an "attractive nuisance".  "Dangerous instrumentality" refers to the care taken by the railroad to protect children from anything that might be dangerous to them.  Like I said, these are very gray areas, but a "dangerous instrumentality" could be something as simple as a sharp knife left unattended in a place available to children.  That same knife in a locked toolbox would not be a "dangerous instrumentality".

2.  When the trespasser's presence has been discovered the railroad is obligated to take immediate action to remove him from the property.  Failure to do so changes his status to that of an invitee and the duty owned to him also increases as previously stated.  Example, a short line general manager is driving past the rail yard and notices an obviously inebriated man cutting across the yard from a tavern across the street.  The GM decides to call the tavern owner later and complain.  His status is that of an invitee because the railroad (in the form of the General Manager) had knowledge of his presence and took no action to remove him.  Had the GM immediately called the police to remove the man, his status would still have been that of an invitee until such time as he was actually removed from the property.  He was a trespasser only up until such time as his presence was known.

3.  When the trespasser's presence is habitual and the acquiescence of the railroad is so pronounced that it is tantamount to permission changes his status to that of licensee.  This has come to be known as the "permissive use" exception.  Taking the former example, if the tavern and the residential area from which it draws its customers is separated by the rail yard, and there is a well worn path connecting the two, anyone using that path is a licensee.  To protect itself, the railroad would need to post "No Trespassing" signs in accordance with state law and elicit the cooperation of the police to enforce the no trespassing law.  The railroad should also make every effort to obliterate the path.  Many times, a fence is looked at as an easy fix for trespassing problems.  If properly maintained, a fence can accomplish this purpose. If not maintained, all the fence does is prove the railroad's knowledge of the problem.  A fence can be cut, climbed over and under, or walked around.  Maintenance and good records are essential in disproving licensee claim.  Several years ago a trespasser was awarded $7.5 million when he was i nju red at a train station which had been closed for the past 35 years due to the fact that the plaintiff was able to prove that the railroad was aware of frequent trespasser activity at the station and had no taken any steps to prevent it.  In another case, a child was using a path across a rail yard to get from his home to a playground.  He fell underneath a passing cut of cars and suffered amputation of both legs.  The jury awarded $18 million.

What can be done to protect your railroad from trespasser claims?  First of all, develop an aggressive plan to deal with trespassing and share this plan with employees, law enforcement agencies and civic leaders.   Second, encourage and require that all railroad employees report cases of trespassing.   Third, identify areas where trespassing activity is physically evident.   By this I mean well-worn pathways, trash accumulation, etc.   Sign or stencil these areas in accordance with local laws and ordinances.  Fourth, remove or protect any potential "attractive nuisances" and/or "dangerous instrumentalities”.  Fifth, elicit the assistance of law enforcement.  Report all cases of trespassing to the police and obtain written documentation of same.  Finally, document all your efforts. Keep files on repeat offenders.  Take photos of signs and stencils.   Aggressive efforts and good documentation are essential in defending trespasser claims.     

POINTS OF LEGAL INTEREST

Heather P. Van Vleet, PR of the Estate of Katlynn Van Vleet vs. Consolidated Rail Corp. –Court of Appeals of Michigan , Case No. 234970.  Conrail tracks run between the City of Monroe, Michigan, water treatment plant and property which abuts the River Raisin.  On April 20, 1996 , plaintiff's decedent daughter, age four, was one of eight children who went to the river to fish.  While crossing a dam, decedent jumped down from one cement structure to a lower one, fell into the river and drowned.  Plaintiff sued Conrail on theories of general negligence and attractive nuisance; however the accident did not happen on Conrail's property.  The Appeals Court affirmed the summary judgment.

Schamens  vs. Gateway Wes tern Railway Company – Jackson County (Mo) Circuit Court, Case No. 00CV224234.  Railroad engineer claimed a knee i nju ry as a result of a train derailment caused by a broken rail. He claimed the defendant was negligent in maintenance and inspection of track and allowed track defects to exist in violation of Federal Track Safety Standards.  Defense verdict.

Anthony Jolliffe vs. Union Pacific Railroad Co. – Denver (Co) District Court, Case No. 01-CV-172.  Conductor alleged that he was coming out of the cab of a locomotive behind co-worker when the co-worker closed the door on him causing a closed head i nju ry.  Plaintiff alleged he could not return to work in his former capacity.  Defendant denied negligence.  Defendant also entered proof that the plaintiff failed to mitigate his damages because he failed to follow the treatment recommended by his health care providers.  In addition to post-traumatic headaches, plaintiff alleged damages for loss wages, lost earning capacity, and future medical expenses including headache medication, pain and suffering and loss of enjoyment of life.  Defense verdict.

Randall Courter vs. Kansas City Southern Railway and Gateway Wes tern Railway Company – St. Louis City (Mo) Circuit Court.  Plaintiff was the conductor on a train traveling approximately 32 miles-per-hour when it was improperly diverted into a side track, causing a collision with a parked coal train.  Plaintiff suffered i nju ries to his right leg and lower back, requiring arthroscopic surgery on both sites of i nju ry. I nju ries included two bulging discs in his lower back, and torn meniscus and ACL in the right knee.  He claimed total and permanent disability as a result of the accident.  $2.25 Million Verdict.

Hall vs. Norfolk Southern Railway Co. – Court of Appeals of Georgia , Case No. A02A23652.  Plaintiff claimed a rotator cuff i nju ry caused by his general work duties.  Plaintiff sued the railroad on November 3, 2000 , alleging that his shoulder i nju ry was caused by the railroad's negligent maintenance of its track and roadbed.  During a deposition plaintiff testified that the activities in which he engaged during his railroad employment had caused pain in his shoulders since at least the late 1980's.  Plaintiff simply ascribed his aches to old age or arthritis to his doctors.  The railroad sought summary judgment on grounds that the claim was barred by FELA's three-year Statute of limitations.  Summary judgment, appeals court affirmed the judgment.

Dorn vs. BNSF – Yellowstone county (Mt) District Court Case No. CV-99-168-BLG.  The decedent Mike Dorn was killed in December 1999, as he attempted to pass over a crossing to reach an elevator.  The crossing was constructed at an approximate fifty-degree angle and there have been two other identical collisions at this crossing.  Plaintiff was 23-years old, married with on daughter.  The trial court judge found that the crossing was a designated public crossing, the stop sign was illegally placed in violation of Montana law, and it was therefore unenforceable.  The jury found the railroad 65% negligent and Dorn 35% negligent; however without making a reduction for contributory negligence, the jury awarded $1,000,000 wrongful death damages and $5,000,000 in punitive damages.

Pedro Darriga, et al. vs. Arkansas and Missouri Railroad Co. – Court of Appeals of Arkansas , Cse No. CA 02-195.  Crossing accident where marked crossbucks and flashing signals were located.  On November 30, 2000, plaintiff approached the crossing when several boxcars were parked approximately sixty to seventy-five feet north of the crossing   Plaintiff sustained serious i nju ries and claimed the railroad failed to provide a watchman or guard, failed to timely and properly sound the train horn, failed to keep a proper lookout, violated internal railroad rules regulating the parking of boxcars near crossings (which called for leaving boxcars no closer that 20 feet to  crossing); and excessive speed under the conditions.  The railroad sought summary judgment, supported by affidavits and deposition testimony to the effect that at the time of the collision the train involved had parked several cars on the side track and was backing southward at 23 m.p.h. with is light and bells on.  Summary judgment.

Stanley vs. Illinois Central Railroad Co. d/b/a Canadian National/Illinois Central Railroad Company – U. S. District Court, Eastern District 9f Louisiana , Case No. 00-3597.  Plaintiff attempted to align a spiked switch that had no yellow tags or any other warning device to advise that it was in fact spiked.  Severe and disabling back i nju ries alleged.   Judgment of $600,000.

Penny Porch DeHart, et al vs. BNSF, et al – 29th Judicial District Court, St. Charles Parish, Louisiana.  A 38 year old dump truck driver was fatally i nju red when he pulled into the path of a BNSF freight train on My 21, 1998.  Private crossing.  An outside witness testified that the train sounded its horn, was traveling at a slow speed, and its brakes were applied in emergency.  The witness also testified that the dump truck was sitting on the crossing approximately 10 minutes prior to the impact.  Plaintiffs alleged the truck was hung up on the crossing due to improper maintenance.   Prior to trial plaintiffs came down from $2.2 million to $600,000 and defendant increased their offer from $75,000 to $300,000.  Defense verdict after less than an hour of deliberation.

RCSI welcomes your input.  If you have any questions or comments of interest to our industry, please contact either Dave Gardner at (731) 967-1796 or FAX your message to (731) 967-1788 or Mike Redden at (615) 773-0767 (Phone and Fax)

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.  Mike Redden

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   38351

(615) 773-0767                FAX (615) 773-0767    ---- Email – Mike_redden@railway-claim-services.com

800-786-5204                  FAX (731) 967-1788    ----      or     dave_gardner@railway-claim-services.com