ON TRACK WITH RAILWAY CLAIM SERVICES, Inc.

Volume 12 Issue 3                                                                   July 2005

 

RAILWAY CLAIM SERVICES, INC.                          Our 18th Year of Service

BACKGROUND CHECKS

12TH ANNUAL RAILROAD LIABILITY SEMINAR

RAILWAY CLAIM SERVICES, INC. WEBSITE

RAILROAD ACCIDENTS – THE FIRST 100 YEARS

NTSB CITES CELL PHONE USE AS CAUSE OF COLLISION

SIGNAL MAINTENANCE AND FEDERAL PREEMPTION

PROPOSED REFLECTORIZATION OF FREIGHT CARS

WHAT WOULD DILBERT DO?

POINTS OF LEGAL INTEREST

RCSI INFORMATION

 BACKGROUND CHECKS

Railway Claim Services, Inc. (RCSI) can perform background checks for potential job applicants.  RCSI can also check injury histories for employees.  For further information contact Elizabeth Vineyard of RCSI at 731-967-1796, or via email at evineyard@railway-claim-services.com.   

For those of you who like to put a face with a name, this is Elizabeth Vineyard.

 QUOTATION FOR OUR TIMES

Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty.  John F. Kennedy, from his Inaugural Address, January 20, 1961

12TH ANNUAL RAILROAD LIABILITY SEMINAR

As you are aware, there are seminars and conferences almost every week of the year dealing with railroad issues.  It is impossible to run a railroad and attend even a small percentage of these events.  I won’t say that any seminar is better than another, but from the standpoint of claims, claims prevention and claims handling, the Annual Railroad Liability Seminar is the one event that should not be missed if at all possible.  Railway Claim Services, Inc. recommends that this event be attended by the person at each railroad whose duties include the handling of claims.  RCSI personnel attend as do many NARTC Defense Counsel.  The program is always informative.  I have attached a copy of the itinerary for the 12th Annual Railroad Liability Seminar to be held in Biloxi , Mississippi on July 19 – 21 of this year.  I have also attached a Registration Form.  I urge you to attend this seminar.

RAILWAY CLAIM SERVICES, INC. WEBSITE

Railway Claim Services, Inc. maintains a website containing useful information for our industry.  If you haven’t visited our website recently, you may have missed some of the content recently added.

The Code of Federal Regulations, TITLE 49—Transportation, Subtitle B--OTHER REGULATIONS RELATING TO TRANSPORTATION, CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF TRANSPORTATION.  Please visit our website and click on the following link.  http://www.railway-claim-services.com/waycar.htm  

We have the complete General Code of Operating Rules posted on our website for your viewing.  http://www.railway-claim-services.com/safety_first.htm

As a Railroader, you have heard of the FELA.  Do you ever wonder exactly what is included in the Federal Employers’ Liability Act?  You can read the entire text on our website. http://www.railway-claim-services.com/waycar.htm

The Occupational Safety & Health Act of 1970 can be found on our website at  http://www.railway-claim-services.com/waycar.htm

We are always trying to upgrade our website and make it a place for you to find the information you need.  If you have any suggestions, comments, or questions, please feel free to contact me at your convenience.  I would appreciate your feedback.

RAILROAD ACCIDENTS – THE FIRST 100 YEARS

NOTE: Very few passengers were killed in a single U.S. train wreck up until 1853. These early trains ran slowly and made short trips, night travel was rare, and there were not many of them in operation.

1831 - June 17, near Charleston , S.C. : boiler exploded on America 's first passenger locomotive, The Best Friend of Charleston, injuring the fireman and the engineer.  This is the first US railroad fatality.

1833 - Nov. 8, near Heightstown , N.J. : world's first train wreck and first passenger fatalities recorded. A 24-passenger Camden & Amboy train derailed due to a broken axle, killing 2 passengers and injuring all others. Former President John Quincy Adams and Cornelius Vanderbilt, who later made a fortune in railroads, were aboard the train.

1853 - May 6, Norwalk , Conn. : New Haven Railroad train ran through an open drawbridge and plunged into the Norwalk River . Forty-six passengers were crushed to death or drowned. This was the first major drawbridge accident.

1856 - July 17, Camp Hill, near Ft. Washington , Pa. : two Northern Penn trains crashed head-on. Approximately 50–60 people died, mostly children on their way to a Sunday school picnic.

1876 - Dec. 29, Ashtabula , Ohio : Lake Shore train fell into the Ashtabula River when the bridge it was crossing collapsed during a snowstorm; 92 people were killed.

1887 - Aug. 10, near Chatsworth , Ill. : a burning railroad trestle collapsed while a Toledo , Peoria & Western train was crossing, killing 81 and injuring 372.

1900 – April 30, near Vaughn , Mississippi :  One of the most famous railroad accidents in US history occurred on April 30, 1900 near Vaughn , Mississippi .  Passenger train #1, Engine 382, struck the rear of freight train #83.  There was only one fatality and six minor injuries.  The total property damage amounted to $2,996.25.  Personal injury settlements amounted to $32.00.  An investigation placed the blame for this accident on the engineer of the passenger train.  Had he not died in the accident, he would likely have been fired.  His name, J. L. (Casey) Jones.  A complete copy of the Superintendent’s Investigation report can be found at http://www.railway-claim-services.com/waycar.htm

1904 - Aug. 7, Eden , Colo. : train derailed on bridge during flash flood; 96 killed.

1910 - March 1, Wellington , Wash. : two trains swept into canyon by avalanche; 96 dead.

1918 - July 9, Nashville , Tenn. : 101 killed in a 2-train collision near Nashville .

            Nov. 1, New York City : derailment of subway train in Malbone St. tunnel in Brooklyn left 92 dead.

1943 - Dec. 16, near Rennert , N.C. : 72 killed in derailment and collision of 2 Atlantic Coast Line trains.

NTSB CITES CELL PHONE USE AS CAUSE OF COLLISION

TRAIN ENGINEER DISTRACTED BY CELL PHONE CITED AS PROBABLE CAUSE OF TRAIN COLLISION

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Washington , D.C. - In a report, the National Transportation Safety Board concluded that the engineer of a  coal train was distracted by a cell phone call when he was supposed to be stopping his train and caused a head-on collision with an intermodal train. The engineer of the intermodal train was killed in the collision. Damages to the trains and track exceeded $8 million. The Safety Board cited the probable cause in its report on a collision of an eastbound coal train and a westbound intermodal train. Also noted in the probable cause was the train conductor's failure to ensure that the engineer complied with track warrant restrictions. The two trains were operating in track warrant territory where dispatchers control train movements by issuing track warrants authorizing a train to occupy a certain section of track.  The track warrant issued to the eastbound coal train was an after-arrival warrant requiring the train to stop at a specified point and wait for the westbound intermodal train to clear the track ahead. Through its investigation the Safety Board determined that the coal train engineer was talking on his cell phone when his train passed the stopping point indicated in the track warrant. The Board concluded that the engineer's cell phone use likely distracted him and he did not take proper note of the after-arrival stipulation and therefore did not stop his train. As a result the Board issued a recommendation to the Federal Railroad Administration (FRA) to amend regulations to control the use of cell phones and other personal wireless devices by railroad operators while on duty.  "Safety is the primary responsibility of any vehicle operator and this responsibility demands the full and undivided attention of the person at the controls," said FRA Chairman when reading the Board's recommendation, "Issuing these recommendations is not enough - implementation is the key." The Board's report further concluded that after-arrival warrants issued to moving trains create an unacceptable risk of a head-on collision. Therefore the Board recommended that the FRA, in areas where there is no positive train control system, restrict the issuance of after-arrival track warrants to trains only after they have stopped at the specified location to allow safe passage of the on-coming train. A synopsis of the accident investigation report, including the findings, probable cause, and safety recommendations, can be found on the Publications page of the Board's web site, www.ntsb.gov.

SIGNAL MAINTENANCE AND FEDERAL PREEMPTION - IF WE DIDN’T KEEP UP OUR CROSSBUCKS, DOES THAT MEAN WE CAN GET TAGGED FOR NOT HAVING FLASHING LIGHTS?

Railway Claim Services, Inc. welcomes contributions from our readers.  The following article was prepared by Dan Fowler.  Dan Fowler is an attorney with Collins, Fairfield, Fowler, Harlan, LLC of Kansas City who specializes in transportation law.  He is a member of the NARTC.  For more information he can be reached at (816) 300-4001, or by e-mail at danfowler@kcnorthlaw.com

The answer to this question could well be yes!  In the past, I wrote a brief article for this newsletter that outlined what the doctrine of “federal preemption” means and its significance in defending lawsuits brought by motorists who chose to ignore FRA financed grade crossing signals.  In short, the doctrine says that if federal funds have been used to upgrade or install signals at a crossing, a motorist who sues the railroad over a crossing accident cannot argue that different of better signals should have been used.  In fact, if federal funds are used in a statewide crossbuck reflectorization program, the improvement argument cannot be made even if the crossing is a busy one in the middle of an urban area and there is no visibility. 

However, what the feds giveth, the courts may taketh away.  One federal court has ruled that if the federally funded crossing protection is not maintained, the protection afforded by the federal preemption doctrine will be forfeited.  In that lawsuit, the crossing had been equipped with lights, which were paid for with federal funds.  However, the lights were not properly maintained.  After an accident, the plaintiff argued that the railroad was negligent for not properly maintaining the lights.  The railroad countered by trying to extend the federal preemption doctrine to cover its maintenance obligations.  Not only did the court reject the argument, it held that preemption was lost altogether by the poor maintenance.  The door was therefore opened for the plaintiff to tell the jury not only that the railroad was negligent in maintaining the signals, but also that it should have used better crossing protection.

One need not tell experienced railroaders of the importance of signal maintenance.  After all, most railroaders live in fear of crossing accidents and would do all that is reasonable to prevent one.  Therefore the loss of federal preemption is not the main reason for not maintaining crossing protection, be it reflectorized crossbucks or gates and lights.  It is, nevertheless, one more reason to be diligent about maintenance.

PROPOSED REFLECTORIZATION OF FREIGHT CARS

49 CFR 224 mandates the reflectorization of certain freight rolling stock.  Part 224 was established by final rule on January 3, 2005 with an effective date of March 4, 2005 .  The FRA received three petitions for reconsideration in response to the final rule.  Accordingly, in order to give the FRA appropriate time to respond, the effectiveness of 49 CFR 224 has been stayed until further notice is published in the Federal Register.  If you would like to take a look at the proposed standard, try the following link.  http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=8fc8e88b32577ac12a6ef0ece7bc5c6c&rgn=div5&view=text&node=49:4.1.1.1.19&idno=49

WHAT WOULD DILBERT DO?

A MAGAZINE RECENTLY RAN A "DILBERT QUOTES" CONTEST.  THEY WERE LOOKING FOR PEOPLE TO SUBMIT QUOTES FROM THEIR REAL-LIFE DILBERT-TYPE MANAGERS.
 
HERE ARE THE TOP TEN FINALISTS:
1. "As of tomorrow, employees will only be able to access the building using individual security cards.  Pictures will be taken next Wednesday and employees will receive their cards in two weeks." (This was the winning quote from Fred Dales, Microsoft Corp. in
Redmond , WA )
2. "What I need is an exact list of specific unknown problems we might encounter." (Lykes Lines Shipping)
3. "E-mail is not to be used to pass on information or data. It should be used only for company business."   (Accounting manager, Electric Boat Company)
4. "This project is so important, we can't let things that are more important interfere with it."  (Advertising/Marketing manager, United Parcel Service)
5. "Doing it right is no excuse for not meeting the schedule." (Plant manager, Delco Corporation)
6. "No one will believe you solved this problem in one day! We've been working on it for months. Now, go act busy for a few weeks and I'll let you know when it's time to tell them." R&D supervisor, Minnesota Mining and Manufacturing/3M Corp.)
7. Quote from the Boss: "Teamwork is a lot of people doing what I say." (Marketing executive, Citrix Corporation)
8. My sister passed away and her funeral was scheduled for Monday. When I told my Boss, he said she died on purpose so that I would have to miss work on the busiest day of the year. He then asked if we could change her burial to Friday. He said, "That would be better for me." Shipping executive, FTD Florists)
9. "We know that communication is a problem, but the company is not going to discuss it with the employees." (Switching supervisor, AT&T Long Lines Division)
10. One day my Boss asked me to submit a status report to him concerning a project I was working on. I asked him if tomorrow would be soon enough. He said, "If I wanted it tomorrow, I would have waited until tomorrow to ask for it!" (Hallmark Cards Executive)

A NOTE ABOUT THE NATIONAL ASSOCIATION OF RAILROAD TRIAL COUNSEL

On August 31, 2005 , Mr. Henry Moffat will retire as Executive Director of the NARTC.  I have corresponded with Henry many times over the years and I view his retirement with mixed feelings.  Everyone in our business will miss Henry.  The newsletter published (irregularly) by the NARTC has been a showcase for his knowledge of the intricacies of the ever-changing railroad legal landscape.  His wit and sense of humor made the newsletter both informative and interesting.  We wish Henry the greatest of success in all his future endeavors. 

Henry will be succeeded as Executive Director by Ms. Michelle Thorpe, an experienced and able railroad defense litigator from Phoenix , Arizona .  Congratulations to Ms. Thorpe.

POINTS OF LEGAL INTEREST

Railroad Retirement Fraud - Fresno , Calif. (AP) -- A former Fresno community service officer who illegally collected nearly $200,000 in U.S. Railroad Retirement disability benefits has been sentenced to six months home detention and five years probation.  Larry J. Hurley, 60, also was ordered to repay the money. He made no comments before or after sentencing.  Assistant U.S. Attorney Marlon Cobar had recommended Hurley serve 12 months.  Hurley pleaded guilty in February to theft of government money involving eight years of disability payments totaling $198,410. As part of a plea deal, Hurley agreed to pay back the money he received between January 1995 and July 31, 2003 .  Hurley's attorney, Rachel Hill, has said previously that Hurley never thought his work for the city while receiving the disability payments was a violation.  Before working for Fresno , Hurley was a special agent for Southern Pacific Transportation Co. and had applied for disability, citing medical problems.  Cobar, who prosecuted the case, said applicants who receive disability from the U.S. Railroad Retirement Board agree to a condition that they not earn more than $400 a month in other income. Hurley had been receiving more than $2,000 a month in disability payments in 2003, investigators said.

The newsletter is running long this time, so I will not list any further cases at this time.  I hope to see you all in Biloxi in July.

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.

Editor’s Note:      If you can receive future editions via email, please let us know so we can include you on our email distribution list.  Email distribution is quicker and saves postage and handling.  

Visit the Railway Claim Services, Inc. webpage 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.


12th ANNUAL RAILROAD LIABILITY SEMINAR

July 19 – 21, 2005

 

Tuesday, July 19, 2005

6:00 – 8:30              Welcome Reception & Registration – Azalea Ballroom A-B-C-D

Wednesday, July 20, 2005

7:15 – 8:00              Registration & BreakfastCamellia A Ballroom

8:00 – 8:15              Break

8:15 – 8:30              WelcomeAzalea Ballroom A-B-C-D            Greg Luce – President, Mississippi Export Railroad

8:30 – 9:30              Tips for Managing Claims:                               Janet Gilbert – Moderator, Fletcher &                                    What’s New?                                                    Sippel LLC

                                FELA Releases (known risk), E-Discovery,                                                                                                          New Allegations against Claims Managers,         Jim Helenhouse -  Fletcher & Sippel  LLC                                Communication between Plaintiffs and                Andrew Hughes - Fletcher & Sippel  LLC

                                Company – Post Representation,                      Raymond Brown – Brown, Buchanan &                                                                                                             Sessoms , PA

                                HazMat Ordinances                                

9:30 – 10:30             Gambling with your Assets                           John Durante – Moderator, AON Risk                                                                                                           Services, Inc.

                                Current Insurance Market Update,                   Matt Murphy – Bates & Carey, LLP

                                RR Protective Liability Insurance,                     Jim O’Hara – AON Risk Services, Inc.

                                Risk Acceptance & Risk Transfers,                 Craig Richey – Watco Co.

                                Indemnification Agreements                              David Parrott – Cedar American Rail Holdings

10:30 – 10:45           Break

10:45 – 11:45          OSHA vs. FRA:  “Who’s on First?”             Jenn Eggers – Oppenheimer, Wolff &                                                                                                            Donnelly

                                Differences & Overlaps of FRA & OSHA,      Bill Tuttle – Canadian Pacific

                                Regulations, Investigations and Future              Stacy Drentlaw – Oppenheimer, Wolff &                                                                                                           Donnelly

                                Developments

11:45 – 1:15            Lunch - Managing Short Line Liability:        Keith Borman – ASLRRA General Council

                                The Role of ASLRRA

                                How the ASLRRA can help its members                                   

                                deal with business liability.                               

1:15 – 2:15              Is it Fraud? Addressing                                     John Murphy – Carco Group Investigations

                                Questionable Claims                                          Tim Karp – Wisconsin & Southern Railroad

                                How to Detect, Protect and Possibly

                                Recover Questionable Claims.

2:15 – 2:30              Break

2:30 – 3:45              Motivational Speaker                                         David Glickman – Corporate Comedian

                                A performance guaranteed to boost morale

                                and entertain.  The speaker will perform song

                                parodies about our industry, people and services.

                                DON’T MISS THE FUN!

  3:45 – 4:45              Mock Deposition of a Claims Manager           Narrator: Mike Flynn – Flynn & Associates

                                                                                                             Plaintiff’s Counsel: Evan Karnes –                                                                                                                 O’Conner & Karnes

                                                                                                             Defense Counsel:  Jim Fletcher – Fletcher                                                                                                                 & Sippel LLC

                                                                                                             Deponent – Jeff Blaney – National Data                                                                                                                 Resources Corp.

5:00 – 7:00              Social Function   

Thursday, July 21, 2005

7:15 – 8:00              Breakfast

8:00 – 8:15              Introductions & Announcements

8:15 – 9:15               Who You Gonna Call? – Handling                Rick Walton – Attorney at Law

                                 the Response to a Critical Incident             Randal Little – Railway Claim Services            

                                Learn how to put together a “go to team”         Glenn Millner – CTECH

                                to respond to a critical incident.                        Gary Wolf – Rail Sciences

                                                                                                       John Thal – Atkinson & Thal

                                                                                                       Mark Calhoun – Winstead Seachrest & Minick

9:15 – 10:15             Wearing Out vs. Working Out                     Sue Immel – Wisconsin & Southern Railroad

                                What companies can do to protect                   Mary Wallenfang – Canadian National

                                 themselves against claims made                       Barb Saunders – Custom Case Management

                                by its older employees who claim that              Joe Pozen – Bates & Carey, LLP

                                a life of hard work has worn them out.

 10:15 – 10:30          Break

10:30 – 11:30          Trespassers to Terrorist –                          Ron Sparks (Sparky) – Arkansas & Missouri

                               The Camera Doesn’t Lie                                  

                               Maximizing security dollars with cameras and

                                the collection of video evidence. Advice on

                                chain of custody and avoiding lawsuits. Updates

                                on the security plans needed by all Railroads.

 

11:30 – 12:30          Emerging Occupation Claims                       Paul Loftus – Huddleston Bolen, LLP

                                Injury claims from ballast exposure;                 Jim Turner –  Huddleston Bolen, LLP

                                Ergonomics And Safety - Why a thorough

                                safety program is the best defense; Diesel

                                Asthma; Diesel Cancer and Solvent Exposure Claims

12:30 – 1:30            LUNCH – FRA’s New Train Horn              Forrest Van Schwartz – Global Trans.                                                                                                          Consultancy

                                Grade Crossing Rule                                   Peter Rand – Arch Insurance Group

                                What it is – What is isn’t                                 Ron Ries – FRA                                                                                                                                                                                                                              

1:30 – 2:45              Risk Management:  A Team Approach     Karen Scalley – Florida East Coast Railroad

                                Hands on approach to risk management         Brian Heikkila – Full Service Railroad                                    at all levels of management.  Internal               Consulting

                                and external prospective from experienced     Foster L. Peterson – Hiwassee River                                    Claims/Risk Managers and Consultants         RailroadCo. / Full Service Railroad Consulting

2:45 – 3:30              Ask the Pros                                                Janet Gilbert – Moderator, Fletcher & Sippel 

                                                                                                     John Murphy – Carco Group Investigations 

                                                                                                    Raymond Brown – Brown, Buchanan, Sessoms ,

                                                                                                    Randall Little – Railway Claim Services

                                                                                                                                                                                                                3:30                         Seminar Closing Statements                                                                                           

                                                                                                                                                           

12th Annual Railroad Claims and Liability Seminar

July 19-21, 2005 **** Beau Rivage Resort & Casino **** Biloxi , Mississippi

SEMINAR REGISTRATION FEES

The conference will kick-off on Tuesday evening, July 19th with an opening cocktail reception. The seminar will be 2 full days on Wednesday and Thursday. Early registration fee will be $150.00 if received by June 1, 2005 . After June 1, 2005 the fee will be $200.00

GETTING TO BILOXI

Gulfport/Biloxi Regional Airport is located approximately 20 minutes from the Beau Rivage.  New Orleans International Airport is located approximately 1 ¼ hours from Biloxi .  Mobile Regional Airport is located approximately 1 hour from Biloxi .  After research, we were unable to obtain an airline group discount due to the fact that we had to guarantee a certain number would fly their airline.

ACCOMMODATIONS

Reservations for the Beau Rivage should be made directly with the hotel by calling (888) 383-7037. In order to receive the group rate, callers must identify their affiliation with the Railroad Liability Insurance Conference. A block of rooms are reserved and the group rate is $139.00 per night. The reserved block of rooms will be held until the cut-off date of June 19, 2005 . Beau Rivage does require that the first night’s room and tax deposit accompany the reservation requests (a credit card number may be used to guarantee a room in lieu of a deposit). The deposit is non-refundable if cancellation occurs within 72 hours of arrival.

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NAME _________________________________ TITLE _______________________________

COMPANY___________________________________________________________________

ADDRESS ___________________________________________________________________

PHONE _____________________________ FAX ___________________________________

E-MAIL_____________________________________________________________________

Have you attended this conference before? Yes _______ No ________

Are you interested in participating in a golf tournament to be held on Tuesday, July 19th before the conference begins? Yes ______ No _______

Are you interested in participating in a deep sea fishing trip on Friday after the conference ends on Thursday? Yes ________ No __________

Return completed form and check made payable to:

Mississippi Export Railroad

P. O. Box 8743

Moss Point , MS 39562

Attention: Bronté Dixon (bronte.dixon@mserailroad.com)

(228) 474-6383 (Phone) (228) 474-8643 (Fax)