ON TRACK WITH RAILWAY CLAIM SERVICES, Inc.

Volume 15 Issue 1                                                    January 2008

 

RAILWAY CLAIM SERVICES, INC.                     Our 21st Year of Service

 

Ø                              BACKGROUND CHECKS

Ø                              AIR TRAVELERS NOTE

Ø                              DOT ANNOUNCES RANDOM DRUG TESTING PERCENTAGES FOR RAIL WORKERS

Ø                              FATAL WORKPLACE INJURIES DROP SLIGHTLY IN 2006

Ø                              RAIL SAFETY STATISTICAL INFORMATION – FIRST HALF OF 2007 V. FIRST HALF OF 2006

Ø                              QUOTES FROM HISTORY

Ø                              FARMERS INSURANCE STUDY SAYS, “BUCKLE UP”

Ø                              COURT ICES NHL PLAYER’S WORK COMP CLAIM FOR BAR FIGHT

Ø                              CAR RENTERS CONFUSED ABOUT NEED FOR COVERAGE

Ø                              U. S. TORT OSTS DOWN IN 2006, ACCORDING TO TOWERS PERRIN STUDY

Ø                              SOUTH FLORIDA TOPS LIST OF NATIONAL “JUDICIAL HELLHOLES”, ACCODING TO PRO-BUSINESS GROUP

Ø                              COLLECTIONS?

Ø                              RAILWAY CLAIM SERVICES, INC. WEBSITE

Ø                              POINTS OF LEGAL INTEREST

Ø                              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 Brenda Cox of RCSI at 731-967-1796, Fax 731-967-1390, or via email at coxb@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. 

AIR TRAVELERS NOTE

Effective January 1, 2008, air travelers will be required to keep all spare lithium batteries in carry-on baggage, with the terminals covered.  For more details, please visit the Department of Transportation's Safe Travel Web site at http://safetravel.dot.gov/whats_new_batteries.html.

DOT ANNOUNCES RANDOM DRUG TESTING PERCENTAGES FOR RAIL WORKERS  

The U.S. Department of Transportation has announced random rail worker drug and alcohol testing rates for calendar year 2008.  According to the Federal mandate, a minimum of 25 percent of rail workers will be subject to random drug testing. In addition, a minimum of 10 percent will be subject to random alcohol testing.

The Federal Railroad Administration sets the number each year based on test results of the previous 12 months. The more positive tests the FRA finds, the higher the percentage of workers tested.  The reverse is also true, as the percentage of workers tested decreases when fewer positives tests are found.  The 2008 rates for drug and alcohol testing are the same as 2007.

FATAL WORKPLACE INJURIES DROP SLIGHTLY IN 2006

The Department of Labor's BLS National Census of Fatal Occupational Injuries for 2006 reported that 5,703 people died from on-the-job injuries in 2006, compared with 5,734 in 2005.  The rate of fatal work injuries in 2006 was 3.9 per 100,000 workers, down from a rate of 4.0 per 100,000 workers in 2005 BLS reported.

The overall fatal work injury rate for the U.S. in 2006 was lower than the rate for any year since the fatality census was first conducted in 1992.

Fatal highway incidents remained the number one cause of on-the-job deaths claim 1,329 lives, accounting for nearly one out of four fatal work injuries.  While fatal highway incidents remained the most frequent type of fatal work-related event, the number of highway incidents fell 8 percent in 2006.  The number of fatal highway incidents in 2006 was the lowest annual total since 1993.

Falls ranked second, increasing 5 percent in 2006, claiming 809 lives.  The 809 fatal falls in 2006 was the third highest total since 1992, when the fatality census began.  Fatal falls from roofs increased from 160 fatalities in 2005 to 184 in 2006, a rise of 15 percent.

Being struck by objects ranked third, with 583 fatalities, although the number of workers who were fatally injured from being struck by objects was lower in 2006, after increasing for the last three years. The 583 fatalities resulting from being struck by objects in 2006 represented a 4 percent decline from the 2005 total.

Workplace homicides ranked fourth claiming the lives of 516 workers, with more than 80 percent of those workers being shot. However, the number of workplace homicides in 2006 was a series low and reflected a decline of over 50 percent from the high reported in 1994, the Census reported.

Fatalities involving fires and explosions increased by 26 percent in 2006, rising from 159 in 2005 to 201 in 2006.  Fatalities resulting from exposure to harmful substances or environments were also higher in 2006, led by a 12 percent increase in exposure to caustic, noxious, or allergenic substances.

RAIL SAFETY STATISTICAL INFORMATION – FIRST HALF OF 2007 V. FIRST HALF OF 2006

In 2007, when compared to the corresponding first six months of 2006, the railroad industry frequency rate declined from 2.17 to 2.03, and the severity rate decreased from 5.84 to 5.68.  Trespasser casualties (deaths and injuries) decreased from 553 to 481 (5.9%).  Highway-rail incidents at public and private crossing decreased from 1,658 to 1,537 (a decrease of 11.5%). 

During the first half of 2007 railroads had 246 fewer train accidents, or a 16.8 percent reduction, when compared to the first six months of 2006.   Specifically, derailments decreased by 14.3 percent and train-to-train collisions fell 12.1 percent. 

The preliminary data shows that the two leading causes of train accidents, human error and track issues, declined 13.9 percent and 15.7 percent, respectively.  Incidents caused by equipment failure fell by 10.3 percent and by signal problems declined by 37.0 percent.

All railroad statistical information can be found at:  http://safetydata.fra.dot.gov/officeofsafety/

 QUOTES FROM HISTORY

A strong conviction that something must be done is the parent of many bad measures.  Daniel Webster

When they call the roll in the Senate, the Senators do not know whether to answer 'Present' or 'Not guilty.'   Theodore Roosevelt

If two men agree on everything, you may be sure that one of them is doing the thinking.  Lyndon B. Johnson

FARMERS INSURANCE STUDY SAYS, “BUCKLE UP”

Farmers Insurance has finished a preliminary study on driver mortality rates in multi-vehicle accidents using 2006 fatal data recently released by the United States Department of Transportation.

The study uses a logistic econometric model with forty-one variables to analyze the probability of a driver’s death in an accident, including safety features, location and time of the accident, and driver demographics.  

The report found “. . .strong statistical evidence that seat belts remain the most important protection for the driver.”  The report went on to say, “We found that when a driver used a seat belt, the odds of a fatality dropped nearly 70% compared to a driver who did not.”

The Farmers study also reported that several other factors showed significance in decreasing the odds of a driver’s death. For example, rear-end collisions proved less deadly than head-on or T-bone collisions.

COURT ICES NHL PLAYER’S WORK COMP CLAIM FOR BAR FIGHT

According to court documents, the Washington Capitals had gone to New York to play the Rangers. Joe Murphy, a Capitals’ player, was injured and not playing in the game, went out for a team-paid dinner with his teammates, where he and others "drank a substantial amount of beer and vodka." They "drank more beer and vodka" at a subsequent nightclub visit.

At closing time outside the club, Murphy was hit over the head by a bottle-wielding man who knew a woman the hockey player was trying to persuade to get in his limousine, court records state.

Murphy, who required medical treatment, filed for workers comp benefits that he asserted "arose out of and in the course of his employment."

However, an administrative law judge blocked the claim. While the dinner "was an activity related to employment," the "venture to the Lower East Side to patronize a bar" afterward "was not an activity incidental to his employment, nor would have it been foreseeable by employer," the judge ruled.

The District of Columbia Court of Appeals upheld an administrative law judge's ruling in favor of Murphy's former employer, the Washington Capitals, and Warren, N.J.-based Chubb Corp.

The appeals court upheld the lower court's ruling and rejected Murphy's suit seeking benefits for injuries he received in a December 2000 fight outside a New York nightclub.

Editor's Comments:  If the assault/injury had arisen after the "team-paid dinner with his teammates" instead of the "subsequent nightclub" stop, would this injury have been covered by WC since it was an activity incidental to his employment? Probably.  Don't you find it strange that we are at the point in our claims and litigation system that someone would pursue a claim of this type? 

CAR RENTERS CONFUSED ABOUT NEED FOR COVERAGE

When the clerk behind the car rental desk slides that form across the counter and says, "Initial here, sign here" and "Oh, check here if you waive liability and collision," it's just natural to picture the worst.

Should you check that little box on the rental form? Do you really need that insurance?  It's only a few extra dollars, but why pay more?  

No matter what you choose, you may still end up feeling confused and, if you do, you have plenty of company.

According to a survey by the Kansas City, Mo.-based National Association of Insurance Commissioners (NAIC), nearly 42% of U.S. residents don't understand car rental insurance.

"When renting a car, many consumers purchase unnecessary insurance and end up wasting money. Meanwhile, other drivers inadvertently underinsure their rental car, placing themselves at risk," NAIC President and Alabama Insurance Commissioner Walter Bell said in a statement.

Of the 632 people surveyed in September, 34% of respondents said they purchased the rental company's insurance just to make sure they were covered, and 24% were not sure whether their credit card provided coverage when renting a car, the NAIC said.

The NAIC recommends consumers contact their car insurance and credit card companies before renting a vehicle, to inquire about specific coverage needs. The NAIC noted that company travel is not covered by personal car insurance and rentals of longer than a week might have different conditions.

A company policy regarding rental car insurance should be in place and all employees renting cars on behalf of the company should be familiar with that policy.

  U. S. TORT COSTS DOWN IN 2006, ACCORDING TO TOWERS PERRIN STUDY

U.S. tort costs totaled $247 billion in 2006, which is approximately $825 per person and $57 less per person than in 2005, according to the 2007 Update on U.S. Tort Cost Trends from the Tillinghast insurance consulting practice of Towers Perrin.  Tort costs declined by 5.5% in 2006, significantly lower than the growth rate of 0.4% in 2005, 6% in 2004 and 5.5% in 2003.  The $13.4 billion decrease over tort costs in 2005 marks the first downward trend since 1997.  The 2007 report analyzes U.S. tort costs from 1950 through 2006, with projections through 2009.

The 5.5% decline in tort costs was markedly less than overall U.S. economic growth of 6.1%, as measured by gross domestic product (GDP).  Since 1950, growth in tort costs has exceeded growth in GDP by an average of 2% to 3%.  However, over the last 20 years, the ratio of tort costs to GDP has stayed within a relatively narrow range, at approximately 2%.  In 2006, the ratio slipped below 2% for the first time in the last six years.

U.S. tort cost growth since 1950 far exceeds U.S. population growth.  Even after adjusting for inflation, tort costs per capita have risen by a factor of more than nine between 1950 and 2005, but inflation-adjusted tort costs per capita were lower in 2006 than in the prior three years.

Looking ahead, Tillinghast anticipates growth of U.S. tort costs to be 2.5% in 2007, with slightly higher growth of 4.5% for the following two years.

A variety of factors may have an effect on the growth of tort costs in the near future, including:

Looking at the list, several of the issues that will impact future trends in tort costs -- from subprime mortgages to global warming to backdating of options -- were not even a consideration a decade ago. Yet these factors and their prospect for continued and new lawsuits have the potential to make a major impact on overall costs in 2007 and beyond.

The 2007 Update on U.S. Tort Cost Trends is the 11th study of U.S. tort costs published by the Tillinghast business of Towers Perrin. The study examines only one side of the U.S. tort system: the costs. No attempt has been made to measure or quantify the benefits of the tort system, such as a systematic resolution of disputes, and the study makes no conclusion that the costs of the U.S. tort system outweigh the benefits or vice versa. The report is conducted entirely by Tillinghast and it is not funded or subject to approval by any outside organization. The report is available at: www.towersperrin.com/tillinghast.

Towers Perrin is a global professional services firm that helps organizations improve their performance through effective people, risk and financial management. Through the Tillinghast line of business, Towers Perrin provides consulting and software solutions to insurance and financial services companies and advises other organizations on risk financing and self-insurance. More information about Towers Perrin is available at www.towersperrin.com.

SOUTH FLORIDA TOPS LIST OF NATIONAL “JUDICIAL HELLHOLES”, ACCODING TO PRO-BUSINESS GROUP


Just in time for the end of the year, The American Tort Reform Association, a pro-business group, said that South Florida topped its national list of “judicial hellholes” for, among other things, “its reputation for high awards and plaintiff-friendly rulings that make it a launching point for class actions, dubious claims and novel theories of recovery.”

On the newest list, South Florida is followed by Texas Rio Grande Valley and Gulf Coast , Illinois Cook County including Chicago , West Virginia and Nevada ’s Clark County that includes Las Vegas .

ATRA said they strive to “identify areas of the country where the scales of justice are radically out of balance, and to provide solutions for restoring balance, accuracy and predictability to the American civil justice system.”  Nevada ’s Clark County ’s debut in the rankings, ATRA said, come as a result of judges “criticized for issuing favorable rulings in cases benefiting friends, campaign contributors or their own financial interests”.

ATRA said that Illinois Cook County is home to what ATRA said was “a disproportionate number of the state’s large civil cases” lately involving pet food and peanut butter.  

According to ATRA, it considers to be the nation’s biggest “judicial hellholes”, in order of the worst being first on the list as:  1) South Florida, 2) Rio Grande Valley and Gulf Coast, Texas, 3) Cook County, Illinois, 4) West Virginia, 5) Clark County, Nevada; 6) Atlantic County, New Jersey.

The group’s “watch list”:  1) Madison County, Illinois, 2) St. Clair County, Illinois, 3) Northern New Mexico, 4) Hillsborough County, Florida, 5) Delaware; 6) California.

Further information is available at:  American Tort Reform Association, http://www.atra.org

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

Minor - Trespasser - Ten Year-Old Girl Killed By BNSF Train — As the plaintiffs’ decedent daughter, age ten, walked a pedestrian path with a cousin, the girls came to defendant’s railroad track on which a BNSF train was approaching.  According to testimony filed with the court the decedent took off running, while telling the cousin that she could make it.  The decedent was struck by the BNSF locomotive and was fatally injured.  As a result of this accident the plaintiffs filed a two count complaint in federal court: asserting: negligent operation of the train; and, liability under the premises liability statute [C.R.S. § 13-21-115].  BNSF railroad moved to dismiss the first claim for relief, based on the statutory provision that “the landowner shall be liable only as provided in subsection (3) of this subsection.”   The district court granted the motion, concluding that, as a matter of law, the negligence claim was precluded by the statutory provision. Nikki Chris tensen, et al v. BNSF Rail Way Company, U.S. District Court D. Colorado No. 07-00374.

Trespasser - Trespasser losses both legs in accident that produced more than one version of the Events -  Troy Bankston, a.k.a. Arthur Banks, age 41 alleged that on September 24, 2004 he was walking beside an NS train in Atlanta , Georgia when his backpack was hooked by a pole extending from the train, resulting in Plaintiff being pulled under the train.  Both legs were severed above the knees.  Another version of the accident came from the surgical notes wherein Plaintiff allegedly stated that he was running beside the train trying to jump on it when he fell under the train.  Since the Plaintiff is currently incarcerated he is not a candidate for prosthetics as prosthetics are not allowed in prison.  A defense verdict was returned by the jury.  Troy Bankston v. Norfolk Southern Railway , US District Court for the Northern of Georgia, Atlanta Division

Trespasser - BNSF Engineer Fails To Engage Emergency Stop Procedure Because “Full Reduction” of Brakes Already in Progress  On November 5, 2001, after drinking six beers between in a span of less than two hours started home.  On his way home the plaintiff, walked, without permission, on railroad property.  At the same time a BNSF train entered Arkansas City , Kansas at between 10 and 20 m.p.h.  The engineer noticed the plaintiff near the tracks. The engineer realized that the person was standing between the tracks and he sounded the whistle.  

According to the engineer, plaintiff continued towards the train with a stumbling gait. The engineer did not activate the emergency stop feature notwithstanding that railroad regulations called for such action when an individual is spotted on the tracks since he already had hill reduction on the train’s brakes. The train struck the plaintiff. The train came to a stop 1.4 miles after plaintiff was struck. The engineer decided to keep the train moving in order to clear the crossings for emergency personnel. The conductor got off the train at the depot and contacted emergency services. The plaintiff survived and was taken to a hospital where his blood alcohol was 0.20 grams per 100 milliliters. Investigators determined that plaintiffs left leg was severed by the 102nd car in the train (which had 107 freight cars and three locomotives). Plaintiff filed suit claiming that the railroad and the crew were negligent, willful and wanton in the operation of the train.

Discovery established that there was nothing that either the engineer or conductor could have done to avoid striking plaintiff. Although the men acknowledged that railroad regulations required activation of emergency stop procedures, they testified that they believed the safer course of action was to continue to the depot so that tracks would be clear for emergency vehicles. The trial court granted a defense motion to strike the expert report on which plaintiff relied as it found that the opinions and conclusions provided were not admissible because they did not address complicated or technical matters and would not assist the trier of fact.

The defense then sought summary judgment on the ground that plaintiff could not prove any breach of duty because he was a trespasser.  It also asserted that plaintiff could not prove causation. The trial court concluded that no duty was breached and granted summary judgment to the defense.  Plaintiff appealed. While not disputing that he was intoxicated, a trespasser and voluntarily in a position of imminent danger, plaintiff claimed that a reasonable jury could have concluded that the decision to continue the train for more than a mile after impact was reckless, especially since the crew did not know whether plaintiff was under or beside the train.

The appellate court reversed the grant of summary judgment. It found that since proximate cause and injury were unchallenged, only the question of duty remained.  As to that matter, the court pointed out that an investigation report completed by the investigating police agency questioned the failure to activate the emergency stop procedure. The court also pointed out that there was no dispute that such action was required by railroad regulations. “Whether the decision not to activate the emergency stop procedure constituted willful and reckless conduct, is a question of fact,” the court concluded. The case was remanded for further proceedings with directions that Culver be allowed to testify, although the exclusion of his report was held appropriate, as it did not include any event recorder data information. Joseph L. Thielen v. BNSF Railway Co., Court of Appeals of Kansas , Case No. 96,272.  

Minor - Trespasser - Ten Year-Old Walks on Railroad Right-of-Way, foot severed – Alabama Supreme Court Affirms Grant of Summary Judgment to Defense. Near a populated area in Birmingham , Alabama , on August 2000 the then ten year-old plaintiff left his home to play with a nine year-old friend. According to plaintiff the boys decided to walk along NS right of way enroute to a park.  As the boys walked along the tracks a train approached, then slowed to a stop. Testimony was presented that after the train stopped the boys began to walk towards plaintiff’s house, but when the boys passed an open hopper car, the plaintiff’s friend climbed the ladder on the car.  The plaintiff then stood with his right foot on the rail in order to reach his friend and pull him down. The train then began to move and the friend fell on top of the plaintiff, whose foot was still on the rail.  The plaintiff’s right foot was severed.

 

The plaintiff filed suit, asserting claims for negligence, wantonness and outrage.  According to the plaintiff, the railroad knew that children would trespass, citing a high rate of pedestrian casualties in the area and that in the past a trespasser-abatement program had been used in the area.  The plaintiff also claimed that the engineer failed to blow the horn before releasing the brakes. Finally, the plaintiff faulted the defendant for stopping the train in such a densely populated area.

 

The railroad sought summary judgment, arguing that the only duty it owed was to avoid wantonly or negligently injuring the trespassing children once it discovered that they were in a position of peril.  It also argued that the boys’ contributory negligence was the sole cause of plaintiff’s injury.  In an order without factual findings or legal analysis, the trial court granted the defense motion.  The Supreme Court of Alabama affirmed the judgment.  James E. Laster, Jr. v. Norfolk Southern Railway Co., Inc., Supreme Court of Alabama No. 1050532.

 

Passenger - New York City Transit Authority Passenger Cannot Recall How She Fell Between Two Cars According to witnesses, the thirty-year old plaintiff, exited the third car of defendant’s train at Manhattan ’s Spring Street Station and then staggered against the side of the train three times before falling into the space between the third and fourth cars.

When the train then moved forward the plaintiff sustained a crush, de-gloving injury of the lower right leg, which eventually required multiple surgeries, including a below-the-knee amputation. In her suit, plaintiff claimed that the operator was negligent. She also asserted that the conductor failed to pull the emergency cord until several minutes after the train stopped, and claimed that the conductor failed to keep a proper lookout. At trial plaintiff testified that the last thing she remembered was leaving a bar where she had been drinking martinis with a friend. The friend testified that she immediately began to scream and wave her hands when plaintiff fell.

The defense denied any negligence, asserting that the conductor properly observed the platform with some physical limitations because of column in the area. The conductor testified that he also utilized three closed-circuit monitors, in addition to a live view of the platform. He claimed that he pulled the emergency cord as soon as a trip device near the wheel alerted him to the fact that something had been run over.  The jury returned a defense verdict. Chris tine B. Yi v. New York City Transit Authority, New York Co. (NY) Supreme Court No. 121430/03. Joseph F. Sullivan of Sullivan & Brill, New York, NY for defendant.

 

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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) 967-1390.

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: 731-967-1390 or visit us on the Web at www.railway-claim-services.com

 

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