ON TRACK WITH RAILWAY CLAIM SERVICES, Inc.

Volume 13 Issue 4                                         October 2006

 

RAILWAY CLAIM SERVICES, INC.    Our 19th Year of Service

 

BACKGROUND CHECKS

QUOTES FROM HISTORY

AUTOMOBILES RANKED BY LOSSES

LIGHTNING CLAIMS, COSTS MOVE IN OPPOSITE DIRECTIONS

RAILROAD INDUSTRY ACCIDENT AND INJURY STATISTICAL INFORMATION

2005 STATISTICS ON FATAL INJURIES IN THE UNITED STATES

THE 13th ANNUAL RAILROAD LIABILITY SEMINAR

MISSISSIPPI UPDATES CLAIM STATISTICS FROM KATRINA

J.D. POWERS: CLAIM-HANDLING PRACTICES VITAL TO SATISFACTION

COLLECTIONS?

RAILWAY CLAIM SERVICES, INC. WEBSITE

POINTS OF LEGAL INTEREST

RCSI INFORMATION

 

BACKGROUND CHECKS & 49 CFR PART 172

 

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. 

 

Background checks are required for new employees under the Haz Mat Security Plan implemented by CFR Part 172, Hazardous Materials: Security Requirements for Offerors and Transporters of Hazardous Materials.  This rule states in part, “No later than the date of the first scheduled recurrent training after March 25, 2003 , and in no case later than March 24, 2006 , each hazmat employee must receive training that provides an awareness of security risks associated with hazardous materials transportation and methods designed to enhance transportation security”.

 

If your railroad has not yet implemented 49 CFR Part 172, Railway Claim Services can assist. 

 

QUOTES FROM HISTORY

 

Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death! Patrick Henry, March 23, 17 75 .

 

Beware of him that is slow to anger; for when it is long coming, it is the stronger when it comes, and the longer kept. Abused patience turns to fury.   Frances Quarles

 

These are times that try men's souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands now, deserves the love and thanks of man and woman.  Thomas Paine

The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government - lest it come to dominate our lives and interests.  Patrick Henry

 

No arsenal, no weapon in the arsenals of the world, is so formidable as the will and moral courage of free men and women.  Ronald Reagan

AUTOMOBILES RANKED BY LOSSES

 

The Highway Loss Data Institute, a nonprofit public service organization closely associated with and funded through the Insurance Institute for Highway Safety, recently published its annual survey on insurance injury, collision, and theft losses of passenger cars, pickup trucks, and SUVs.

Injury losses indicated the relative frequencies of injury claims per insured vehicle year filed under personal injury protection coverages in the 17 states that offer it, according to the study.  Also called no-fault insurance, personal injury protection coverage pays for medical/hospital/other expenses incurred by occupants of insured vehicles, up to specified limits, regardless of fault in the crash. Topping the list in this category was the Suzuki Aerio.  The model had injury losses that were 135 percent higher than the reported average.  It was closely followed by the Dodge SRT (110 percent above average) and another Suzuki model, the Forenza (109 percent above average). All three were classified as four-door small cars.

The study also looked at collision losses, which indicate the relative average loss payments per insured vehicle year filed under collision coverages.  Collision insurance provides reimbursement for the cost of repairing crash damage to insured vehicles, less a specified deductible amount. The automobiles ranking highest in this category included the Mitsubishi Lancer Evolution 4WD model (328 percent above average), the Dodge SRT (184 percent above average), and the Subaru Impreza WRX 4WD (151 percent above average). Again, all three models were classified as four-door small cars.

Finally, the study examined theft losses, indicating the relative average loss payments for theft per insured vehicle year filed under comprehensive coverages.  Leaders in this category included the small-car Mitsubishi Lancer Evolution 4WD model (a whopping 448 percent above average), the small sports-car classified Honda S2000 convertible model (418 percent above average), and the luxury extra-large classified BMW 7 series 4-door model (331 percent above average).

Results were based on the loss experience of 2003-05 models from their first sales through May 2006, according to the study. For vehicles that were newly introduced or redesigned during these years, the results shown in this publication are based only on the most recent model years for which the vehicle designs were unchanged — either 2004-05 or 2005 only. Results were grouped according to vehicle body style and then according to size. A total of 372 vehicles were listed.

The complete results of the HLDI’s study can be found by clicking here .

 

Editors Note:  The following inclusion on “lightning claims” is included not because we are really handling these type of claims, but because we thought it was interesting, and because maybe, just maybe, there is a corollary to some of the other property damage claims in which we could become involved, "People are purchasing . . ." those high end big ticket items, to include automobiles and all that we add to those autos….could this explain (in part) an increase in the cost of settlement of crossing accident claims? 

 

LIGHTNING CLAIMS, COSTS MOVE IN OPPOSITE DIRECTIONS

 

The Hartford Financial Services Group, a provider of investment and insurance products, said its company records showed that the number of lightning-related homeowners’ claims is declining, but the total cost of those claims is rising significantly.

 

According to the company’s data, the number of lightning-related claims declined by 48 percent from January 2001 through July of 2006, while the cost of replacing property and belongings grew by 77 percent during that same period. Company data also showed that 73 percent of all lightning-strike claims in those five years were reported during the months of June through September. Thirty-seven percent of total lightning losses, the greatest amount, occurred in the Southeast region, while the Northeast, in second place, generated 18 percent.

 

“When you think about it in terms of consumer trends and the cost of living, it does make sense," said Vicky Pace, assistant vice president of claims at The Hartford. "People are purchasing many more higher-end appliances and electronics, such as flat screen televisions, home theatre systems, computers, and office equipment, which can be very expensive to replace when damaged. Labor and material costs associated with rebuilding have also been rising and can add to the price tag of a claim." More information is available at www.thehartford.com .

 

++++++++++++++++++++

 

Insurance company claims payments equal 11% of state income in Louisiana and 10% percent in Mississippi .  Claims Magazine, September 12, 2006 .   www.claimsmag.com

 

++++++++++++++++++++

 

 

RAILROAD INDUSTRY ACCIDENT AND INJURY STATISTICAL INFORMATION

 

Through 2006’s first half, U.S. railroads remained on course to post their best-ever safety statistics in a given year, according to preliminary Federal Railroad Administration data released by the Association of American Railroads (AAR).

The roads’ six-month train accident rate of 3.39 per million train miles was 4.2 percent lower than the full-year record of 3.54 per million train miles set in 1997 and 18.4 percent below first-half 2005’s accident rate. The number of train accidents dropped 16.1 percent and yard accidents - which comprise more than half of all train accidents - declined 20 percent compared with first-half 2005 data.

In addition, the six-month employee casualty rate decreased 9.9 percent, total employee fatalities fell 54.5 percent and rail-related fatalities dropped 5.9 percent. The first-half grade crossing incident rate declined 2.7 percent but total number of fatalities increased 5.8 percent compared with first-half 2005 data. Meanwhile, the six-month trespasser incident rate dropped 3.6 percent while the total number of fatalities remained the same.

Railroads are posting progress despite numerous safety challenges, such as moving record freight volumes, adding thousands of new employees to their ranks, and maintaining more tracks, signals and equipment, the AAR said.

 

See also, Bureau of Transportation Statistics - Table 2-40: Fatalities and Injuries of On-Duty Railroad Employees at the following site:  http://www.bts.gov/publications/national_transportation_statistics/2005/html/table_02_40.html

 

 

2005 STATISTICS ON FATAL INJURIES IN THE UNITED STATES

 

Fatal job-related injuries claimed the lives of 5,702 U.S. workers in 2005, down from the revised total of 5,764 in 2004, according to a new government report.

"Fatal highway incidents remained the most frequent type of fatal workplace event, accounting for one in every four fatalities nationally in 2005," according to the Bureau of Labor Statistics' "Census of Fatal Occupational Injuries in 2005." In 2005, fatal highway incidents rose by 2%, according to the report released Thursday.

Among other transportation-related deaths, those related to railroads were "sharply higher," rising 68% to 84 deaths in 2005, from 50 in 2004. In addition, aircraft-related deaths were down 36% in 2005 compared with the previous year, the report said.

Declines were seen in fatal falls, which are the second-most frequent cause of work-related deaths. They dropped to 767 in 2005 from an all-time high of 822 in 2004.

"While the number of fatal work injuries in private construction continued to be the most of any industry sector, the number of fatalities-1,186-was 4% lower in 2005 than 2004," the study said.

Also, fatal work injuries involving women in 2005 were down 3% to 402, the lowest total ever recorded by the report, which has been conducted for 14 years in all 50 states and the District of Columbia .

The report cited increased fatalities, though, of 23% among agricultural workers and of 18% among workers younger than 20.

The decrease in workplace fatalities contributed to "the third-lowest annual total recorded since BLS began collecting this data," according to a statement by Edwin G. Foulke Jr., the assistant secretary of labor of the Occupational Safety and Health Administration. “More importantly, this shows that more men and women were able to return home safely from their jobs," he said.

 

 

THE 29th ANNUAL AAR GENERAL CLAIMS CONFERENCE

 

There is still time to register for the 29th Annual AAR General Claims Conference.  The event will be held in Tempe , Arizona on November 1 – 3, 2006 .  Registration details can be found on our website under the heading “Meetings”.  The direct link is http://www.railway-claim-services.com/Meetings.htm

 

 

MISSISSIPPI UPDATES CLAIM STATISTICS FROM KATRINA

 

Insurance Commissioner George Dale recently vowed that the Mississippi Insurance Department (MID) will continue its devotion on getting as many claims from Hurricane Katrina paid as is possible.  Dale cited recent statistics from the Insurance Information Institute — that 94.3 percent of homeowner claims in Mississippi have been settled — when expressing the MID’s dedication.

 

The Mississippi Insurance Department also released the following Katrina statistics:

 

483,693 and $10,552,356,484: The number of claims filed and the amount paid out in claims for Hurricanes Katrina and Rita in Mississippi as of Aug. 1, 2006 .

236,372 and $7,622,989,516: The number of claims filed and amount paid out in claims in Hancock, Harrison, and Jackson counties for Hurricanes Katrina and Rita as of Aug. 1, 2006 .

18,891 and $2,354,660,628: The number of flood claims filed and the amount paid out for flood claims in Mississippi as of Aug. 1, 2006 .

 

J.D. POWERS: CLAIM-HANDLING PRACTICES VITAL TO SATISFACTION

 

Editors Note:  Although the study reported on below focused on the auto insurance industry, RCSI management, and this editor think these findings provide broad indicators to our industry as well.

 

In a study released by J.D. Powers and Associates, claim handling is listed as one of the major behaviors exhibited by insurers that directly impacts customer satisfaction and loyalty. 

 

The report, called the 2006 National Auto Insurance study, said that for customers who file a physical damage claim with their auto insurer, time is one of the most important qualities. The study recommended a same-day response to the first notice of the accident, followed by a settlement within a week and repairs completed within two weeks as the standard by which all insurers should be measured.  Why?  Satisfaction with claim handling drives 44 percent of the overall impression of their insurer for customers who filed a recent auto claim.

 

The study also identifies and tracks performance on numerous specific, measurable behaviors on the part of the insurer in regards to customer satisfaction levels. For example, auto insurance customers are more satisfied when they only have to contact their insurer once to resolve an issue; satisfaction declines significantly with each additional contact. Customers who had their calls resolved on the same day recorded average satisfaction scores of 862 on a 1,000-point scale. That drops to 816 among those who had to wait one to three days for their issue to be resolved and to 727 for those who had to wait four or more days. When a call back is required, those who receive a call back when promised rate their insurer 135 points higher than those who do not.

 

Overall customer satisfaction with auto insurers improved for a fourth consecutive year, although the rate of improvement has slowed, according to the report. Overall satisfaction was measured based on performance in five factors: interaction, billing and payment, policy offerings, price, and claims.

 

The 2006 National Auto Insurance Study is based on responses from 14,066 auto insurance policy holders who were surveyed between April and May 2006. More information is available at www.jdpower.com .

 

                       

COLLECTIONS?

 

Problems collecting for damages?  Increase your chances of collecting that money, or reducing the total you are legally obligated to pay.  All without the cost and delays where litigation is involved.  Let Railway Claim Services, Inc. handle these collection issues for you.  You pay nothing if RCSI fails to collect or fails to reduce the bill for the submitted loss.  Email or call Randal Little or Dave Gardner for further information.  There is no cost if we are not successful.

 

 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 

Railway Claim Services’ website has the complete General Code of Operating Rules posted for your reference.  http://www.railway-claim-services.com/safety_first.htm

RCSI also has the entire test of the FELA posted on our website:  http://www.railway-claim-services.com/waycar.htm

Also, The Occupational Safety & Health Act of 1970 is available at:  http://www.railway-claim-services.com/waycar.htm

As a part of our ongoing efforts to provide RCSI clients with information vital to the safe and efficient operation, RCSI’s website contains the complete text of the Emergency Response Guidebook:  http://www.railway-claim-services.com/waycar.htm

 

RCSI is 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.  We appreciate your feedback.

 

POINTS OF LEGAL INTEREST

 

Editor’s note – In this issue, I would like to take a look at cases in which Railway Claim Services was involved which resulted in good results for our clients.  Sometimes you just need to toot your own horn.

 

FELA

 

Pierce v. Chicago Rail Link, CSX Transportation, & CSX Intermodal, Inc. – (No information contained herein is outside of information contained in records publicly available and/or presented in trial.)  Plaintiff, a 26-year-old CRL conductor, was directing the movement of three CSX locomotives at the CSX Intermodal terminal at Bedford Park , just outside Chicago .  As the locomotives pulled past one switch, Pierce dismounted to realign that switch for a reverse movement.  He then walked to a second switch to align it.  As the engineer shoved the locomotives toward Pierce, Pierce gave the command, “I’m on.  Shove fifty.”  That was the last communication heard from Pierce.  As the engineer moved past the second switch, he saw Pierce lying on the ground beside the track.  The accident/injury occurred on Thursday, October 23, 2003 .  On Friday, October 24, 2003 , the Chicago , Illinois law firm of Hoey & Farina filed a lawsuit in Federal Court in Chicago under the FELA against CRL and common law negligence against CSXT and CXSI.  A loss of consortium on behalf of Pierce’s wife was filed against CSXT and CSXI.

 

The investigation revealed that there were no witnesses to the accident.  The plaintiff also claimed he could not remember anything about the accident due to trauma induced amnesia.  An inspection of the switch revealed no defects.  There were no defects in any of the locomotives.  There was no radio failure.  The ballast was in good condition, with no potholes, or any other tripping hazards.  In short, there was nothing about this unfortunate accident to support a claim under FELA.

 

Plaintiff named three expert witnesses who proceeded to develop a theory of liability based on an improper radio command, uneven terrain and insufficient training.  RCSI retained Jim Fletcher of Fletcher & Sippel to defend the interests of CRL and Evan B. Karnes II of O’Connor & Karnes to defend the CSX entities.  RCSI Operations Director Randal Little, Operations Manager Dave Gardner and Senior Claims Manager David Hasenmueller worked closely with the named rail defendants, the insurers, and defense counsel over the long course that finally resulted in trial.  At trial, Jim Fletcher and Colleen Konicek defended Chicago Rail Link; Evan Karnes defended CSXI, and Neal O’Connor, also of O’Connor & Karnes, defended CSXT.

 

The lowest settlement demand was in excess of $27 million.  The plaintiff’s attorneys rejected settlement offers that included annuity payments to Pierce and his wife.  The judge, following defense counsel’s Motions, bifurcated the trial on liability and damages.  The liability phase of the trial lasted for two weeks.  The case went to the jury on the afternoon of Friday, July 7, 2006 .  On Monday, July 10th, the jury returned with a verdict for the defense, finding no fault on the part of CRL , CSXT, or CSXI.

 

As you might imagine, there was a tremendous amount of effort that went into the pre-trial phase and the trial, on behalf of all parties, to include the excellent claims management by Railway Claim Services, Inc.  If you have questions regarding the trial preparation, a good article appeared in the September 2006 copy of the Bulletin, published by the AAR General Claims Conference.  Additional information can also be found on our website at http://www.railway-claim-services.com/FINAL-Summer%202006.pdf

 

Lingo v. Ohio Central Railroad – (No information contained herein is outside of information contained in records publicly available and/or presented in trial.)  The Ohio Central Railroad ( OCR ) received a flatcar in interchange, which was loaded with an oversized boiler.  Due to the size of the boiler, the handholds on the flatcar had been removed and the load was shipped with two idler cars in order to comply with FRA regulations.  When the car was unloaded it was sent back to the originating carrier, with idler cars still attached.  Somehow, the flatcar was erroneously shipped back to the OCR without the idler cars.  OCR was preparing to move the car back to the originating carrier when Lingo attempted to mount the car, despite a stenciled warning “Do Not Ride”.  His foot slipped and he sustained a de-gloving injury to his left foot.  Despite attempts to save his foot, a below-the-knee amputation was required.  Lingo filed suit in the Court of Common Pleas in Franklin County, Ohio.  Plaintiff’s counsel filed a Motion for Summary Judgment on OCR ’s violation of the Safety Appliance Act.  The court granted the motion.  OCR was faced with trying the case on damages only, or trying the case on the basis that Lingo’s negligence was the sole proximate cause of the injury.  At the time of the accident, Lingo was 33 years of age.  The case was prepared and tried by Joseph Golian and Shannon Benton of Brenner, Brown, Golian & McCaffrey of Columbus , Ohio .  Lingo also added a count for unlawful discharge to his lawsuit.  The unlawful discharge was settled prior to trial.  The settlement demand going into trial was $7.5 Million.  The jury returned a verdict of $1.35 Million.

 

TRESPASSER

 

Sutton v. Akron Barberton Cluster Railway – (No information contained herein is outside of information contained in records publicly available.)  Plaintiff in this case was an eleven-year-old trespasser who sustained blunt amputation of both legs while attempting to board a slow-moving train.  Lawsuit was filed and defended by Thomas Dover of Gallagher, Sharp, Fulton & Norman .  In his deposition, plaintiff alleged that a protruding appliance from a railcar caught his coat and dragged him under the car.  His story was collaborated by his brother, who happened to be on the opposite side of the train without any view of the accident.  Upon completion of discovery, defense counsel filed a Motion for Summary Judgment.  The court agreed with defense counsel’s reasoning and the MSJ granted.

 

REMOTE CONTROLLED EQUIPMENT

 

Corbin v. Relco Locomotive – (No information contained herein is outside of information contained in records publicly available and/or presented in trial.)  To the best of my knowledge, this is the first litigated case in the country for an injury involving the use of a remote controlled locomotive.  The Plaintiff, Barbara Corbin, sustained fatal injuries while operating a remote controlled locomotive at a steel plant in Ohio .  The accident was unwitnessed.  It is known that Corbin was using the locomotive to shove ten cars to the plant.  She had been in communication with personnel inside the plant to alert them she was coming.  When she failed to appear after a length of time, another employee went outside to locate her.  He found her face down between the rails.  She had been struck by the train and suffered fatal injuries.  The lawsuit was filed alleging that the remote control unit was defective, the training she received was insufficient and the procedures established for the use of the remote controlled unit were unsafe.  Defense of this lawsuit was handled by Joseph Golian of the firm of Brenner, Brown, Golian & McCaffrey of Columbus , Ohio .  The initial settlement demand was $3.5 Million.  Defense counsel filed a Motion for Summary Judgment which was granted by the court.  Plaintiff appealed.  While the case was in appeal, plaintiff dropped their demand to $115,000.  We offered $15,000 from each of the three defendants, for a total of $45,000.  This was rejected by the plaintiff.  The United States Court of Appeals for the Sixth Circuit upheld the District Court's grant of summary judgment in our favor.

 

CROSSING ACCIDENT

 

Redmond v. Alabama & Gulf Coast Railroad – (No information contained herein is outside of information contained in records publicly available and/or presented in trial.)  The plaintiff was driving a 1993 Ford Fiesta when she pulled into the path of an oncoming Alabama and Gulf Coast Railroad train.  As a result of this accident, Redmond was injured and the vehicle she was driving was totaled.  Plaintiff brought this action to recover for personal injuries, loss of consortium, and property damage for the loss of the vehicle.  At the time of the collision, plaintiff was ejected from the vehicle.  She suffered lacerations to her head and scalp with a quarter-inch puncture wound to the right eye side and center of her forehead.  She had multiple fractures including her femurs and her pelvic girdle.  She was transported via the LifeFlight helicopter to Baptist Hospital in Pensacola .  She ultimately was transferred to the University of Alabama Hospital in Birmingham where she underwent surgery to repair her femurs.  Plaintiff went through physical therapy at University of Alabama at Birmingham Hospital and her medical treatment for her recovery spanned almost eight months.  Plaintiff claimed medical expenses in the amount of $328,808.38.  The plaintiff’s initial settlement demand was $5,000,000.00.  After protracted negotiations the case was settled for $75,000.  Defense of this matter was handled by Wade Richardson of  Lange, Simpson, Robinson & Somerville in Birmingham , Alabama .

 

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

 

 

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 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.