ON TRACK WITH RAILWAY CLAIM SERVICES, Inc.

Volume 15 Issue 2                                                    April 2008

 

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

 

Ø                  BACKGROUND CHECKS

Ø                  “NEW” CALL RCSI FIRST DECALS AVAILABLE

Ø                  RAIL OPERATING EMPLOYMENT DOWN 5.3%

Ø                  TRAIN ACCIDENTS FELL 14 PERCENT, HAZMAT INCIDENTS ROSE IN 2007

Ø                  AND, JANUARY 2008 RESULTS: CROSSING AND TRESPASSER FATALITIES DOWN

Ø                  NON-RAILROAD, BUT INTERESTING – BLINDED MAM AWARDED $1.75 Million - AP - 3-08-2008

Ø                  QUOTES FROM HISTORY

Ø                  DISASTER RECOVERY / BUSINESS CONTINUITY PLANNING SOFTWARE SOLUTIONS

Ø                  MONTANA HIGH COURT RULES FOR WORKERS IN COMP CASES

Ø                  FRA RELEASES DEMOGRAPHIC REPORT OF RAIL TRESPASSER FATALITIES

Ø                  PORT OF NEW YORK AND NEW JERSEY REPORT RECORD CARGO

Ø                  THE 15th ANNUAL RAILROAD LIABILITY SEMINAR

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.   

“NEW” CALL RCSI FIRST DECALS AVAILABLE

Dave Gardner asked me to let readers of this newsletter know that he has ordered NEW “Call RCSI First” decals, appropriate for application on hard hats, company vehicle windows, coffee mugs, computer monitors, etc.  Dave said he would have a supply at the ASLRRA Liability Seminar in Kansas City in July (See the information on this seminar later in this newsletter).  If you need decals sooner, give Dave a call and he will send as many as you need.  These “new” decals and RCSI’s “metal foil decal placards” remain available for our railroad and railroad related business clients.

RCSI decals provide readily available contact information and serve as reminders that a good, timely investigation is the key to protecting the interest of railroads and railroad related businesses.   

RCSI’s track record doesn’t just speak for itself, it SHOUTS!  RCSI investigates and manages claims for the railroad industry.  If your house burns down, we can’t help.  But, if your railroad causes a fire that burns down an entire town, RCSI is the go-to source.  RCSI has done just that….….provided claim services where an entire town burned.  RCSI has also provided claims services for some of the most costly derailments and evacuations in the history of America ’s railroads.   On a daily basis RCSI claims managers investigate and manage FELA injuries, crossing accidents, trespasser incidents, and third party claims involving railroads.

RAIL OPERATING EMPLOYMENT DOWN 5.3%

Total employment on U.S. Class I railroads dropped 1.9% to 161,252 in December 2007 compared with December 2006. The sharpest numerical decline was in the category of transportation (train and engine) employees, which was down 5.23% to 66,056.  The biggest percentage decline was in transportation (other than train and engine), down 5.35% to 6,835. The category of executives, officials, and staff assistants declined 0.25% to 10,123, and the professional and administrative division was down 0.44% to 13,784.  Maintenance of way and structures employment increased 2.15% to 34,730, and maintenance of equipment and stores employment rose 0.64% to 30,724.                                                                         

TRAIN ACCIDENTS FELL 14 PERCENT, HAZMAT INCIDENTS ROSE IN 2007

WASHINGTON (AP) - According to the Federal Railroad Administration (FRA) there were less accidents and deaths involving trains in the U.S. last year, but more railroad incidents involving hazardous materials.  Last year 486 people nationwide were killed after trespassing on railroad lines compared with 518 deaths in 2006.  Another 339 fatalities involved trains and a car or truck, 30 fewer than in 2006.

The number of fatalities rose in 2006 compared with the previous year.  The total number of train accidents - including derailments, collisions or other accidents - fell by nearly 14 percent last year to 2,547.

One classification of incidents that did rise last year involved railroad cars that released hazardous materials, which jumped to 43 reports from 28 in 2006.  FRA’s Joseph Boardman said more trains are carrying ethanol and a relatively new technologies used to safely release the fuel likely contributed to that increase.   The U.S. ethanol industry produced about 6.49 billion gallons of the fuel last year, up from about 4.86 billion gallons in 2006, according to the Renewable Fuels Association.

Accidents in recent years has resulted in the FRA developing a new plan for safety oversight that focuses on the most frequent causes of accidents.

In 2007 the FRA added two automated track inspection vehicles that allowed it to triple the number of track-miles inspected annually, and approved new technologies and grade crossing safety initiatives.  

AND, JANUARY 2008 RESULTS: CROSSING AND TRESPASSER FATALITIES DOWN

According to The Federal Railroad Administration statistics released on March 31, railroads recorded 55 fatalities in January, which is a 17.9% decline from the 67 deaths reported in January 2007. Grade crossing fatalities were down 27.3% to 23 and trespassing deaths dropped 12.1% to 29. There was only one employee fatality in January, compared with three in January last year.

Total accidents and incidents declined 11.0% to 961 in January. Train accidents were down 4.7% to 203 and derailments declined 8.7% to 147, though collisions increased 12.5% to 18. Yard accidents declined 8.1% to 228.  

NON-RAILROAD, BUT INTERESTING – BLINDED MAN AWARDED $1.75 Million - AP - 3-08-2008

(AP) MANCHESTER , N.H. – A Warner, NH man who accused an emergency room surgeon of malpractice has been awarded $1.75 million.  Randolph Hinz, 42, sued Dr. Eric Leefmans and two other physicians in 2006, three years after crashing his car on I-89.  Hinz was thrown about 150 feet from the vehicle and suffered multiple broken bones and a collapsed lung.

According to his lawsuit, Leefmans performed emergency surgery at Concord Hospital to repair Hinz's broken leg but did not give him blood to stabilize his condition, causing him to go blind because of the blood loss.  

A Merrimack County Superior Court jury awarded Hinz $1.75 million plus about $200,000 in interest. The jury found that Leefmans was 100 percent responsible for Hinz's condition and that two other doctors Hinz also had sued were not at fault.  Hinz's lawyer, Suzanne McDonough, said the leg surgery could have waited. Because of the blood loss, nerves in Hinz's brain that control sight were deprived of oxygen and he was blind when the surgery ended.

"I woke up in a dark room a month and a half after it happened, and I'm still in that dark room and I'm not coming out," McDonough said her client told her.

She said the defense claimed during the trial that Hinz was lucky to be alive after the injuries he suffered. That may be, she said, but "he did not go to a local doctor or some health care shop on the side of the road. He went to an emergency room, a level-one trauma center. You're not supposed to come away blind."

Information immediately above is from: New Hampshire Union Leader, http://www.unionleader.com

 QUOTES FROM HISTORY

 

Four Quotes from Thomas Jonathan Jackson (January 21, 1824 to May 10, 1863)

  1. I like liquor — its taste and its effects — and that is just the reason why I never drink it.
  2. God has fixed the time for my death. I do not concern myself about that, but to be always ready, no matter when it may overtake me.
  3. Let us cross over the river, and rest under the shade of the trees.
  4. "Duty is ours; consequences are God's." Though this was a favorite motto of Jackson , and may be among his last words, it did not originate with Jackson .

DISASTER RECOVERY / BUSINESS CONTINUITY PLANNING SOFTWARE SOLUTIONS

Included as an attachment is an informative PDF “flyer” from a company that provides data recovery should an unforeseen disaster strike your computer systems.  What would you do if all of your records are suddenly compromised?  Plan now.  

MONTANA HIGH COURT RULES FOR WORKERS IN COMP CASES

Editor's Note:  In the last edition of this Newsletter (ON TRACK WITH RAILWAY CLAIM SERVICES, Inc., Volume 15, Issue 1) we alerted our readers (COURT ICES NHL PLAYER’S WORK COMP CLAIM FOR BAR FIGHT) to the possible broadened inclusion of employees under Workers Compensation, in situations not "normally" considered as a part of an employee's "job description".  Below are two new examples.  Liability standards will also come into play involving FELA covered employees .

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HELENA, Mont.—Montana’s Supreme Court recently ruled in two separate workers compensation cases that the employees were due insurance for injuries.  A unanimous Montana Supreme Court agreed with a Montana District Court ruling that Maril BeVan’s injuries sustained in May 2005 car crash should be covered by her employer, Blackfoot Telephone Communications in Missoula, Mont., as they occurred while she was on a paid 15-minute break.

Additionally, late last month in another unanimous decision, the Supreme Court agreed with a state district court ruling that Curtis Michalak should be awarded insurance benefits after he was seriously injured in a wave runner accident during a company sponsored picnic.

Portland, Ore.-based Liberty Northwest Mutual Insurance Co., which insured both Blackfoot and Mr. Michalak’s employer, Felco Industries of Missoula, argued in both cases that the injuries didn’t take place during the scope of employment and therefore should not be covered.

The Montana Workers Compensation Court in Helena also weighed in on both cases before they went to the Supreme Court and agreed with the district court ruling.

In Ms. BeVan’s case, the Supreme Court concluded that because her 15-minute breaks were paid for by Blackfoot and there were no stipulations that prevented her from leaving work to care for her dog during her break, her injuries sustained in the accident on the way back to work should be compensated.

“Our analysis…leads us to conclude that Blackfoot retained authority over its employees during the mid-morning and mid-afternoon breaks and that BeVan’s injury occurred during the course and scope of her employment,” Justice William Leaphart wrote in his opinion.

In Mr. Mchalak’s case, the Supreme Court agreed with the WCC ruling in that Mr. Michalak had been put in charge of the rented wave runner by his employer and was hurt “during the course of his duties.”                                                 

FRA RELEASES DEMOGRAPHIC REPORT OF RAIL TRESPASSER FATALITIES

 

According to a report issued by the Federal Railroad Administration (FRA) on March 21, 2008, trespassers account for the largest number of fatalities in the railroad industry – approximately 500 per year.  The report uses three years of reported trespasser fatalities. According to the report, medical examiners and coroners across the country were surveyed.  Based on the best information available from those who elected to participate in the study, the average trespasser is most often a 38-year-old Caucasian male under the influence of alcohol and/or drugs, with a median household income of $36,000.  More than 25 percent did not graduate from high school, and 18 percent were determined to be suicides.  The report, Rail-Trespasser Fatalities: Developing Demographic Profiles, includes a state-by-state breakdown and shows California and Texas recording the highest number of such events.  The report strongly recommends additional demographic analysis to reinforce and expand on these results in order to develop targeted educational and outreach programs and law enforcement initiatives to reduce the number of rail trespassing incidents. 

 

The report is available at: http://www.fra.dot.gov/downloads/safety/tdreport_final.pdf. Contact: Rob Kulat (202) 493-6024.

PORT OF NEW YORK AND NEW JERSEY REPORT RECORD CARGO  

The Port of New York and New Jersey reported that it had handled 32.8 million metric tons of cargo in 2007, compared with 31.2 million metric tons in 2006.  PANYNJ also reported that the value of that cargo last year totaled $166 billion, up 11 percent from 2006.  In announcing the results, a port spokesman reminded of several forthcoming projects designed to improve service and capacity at the port, including adding 119 acres on the eastern end of the Port Jersey peninsula for new cargo container space; completion of its ExpressRail on-dock rail system by 2011; and deepening of the Port Jersey Channel by 2012. (Progressive Railroading, RT&S)

THE 15th ANNUAL RAILROAD LIABILITY SEMINAR, HOSTED BY: 

The 15th Annual Railroad Liability Seminar will be hosted by Watco Companies, Inc. in Kansas City , Kansas , at The Intercontinental at the Plaza.  Attendees are invited to start the conference on July 22 by networking at a golf outing, which will be followed back at the hotel by registration and then a cocktail reception at 6:00 pm.  The program which includes authoritative and timely topics begins July 23 at 8:15 am and will continue on the 24th, concluding with a night at the ballpark with the Royals vs. Tampa Bay .

This seminar is attended by regional and short line railroad staff in accounting, insurance, legal departments, human resources, risk, and claims representatives.  Please make plans to attend this important conference.  

For information about registration, a registration form for the seminar, or to be a sponsor please contact Lori Magee

Director of Claims/Risk Management of Watco Companies, Inc. Her phone number and email address are:  620-231-2230 and lmagee@watcocompanies.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.  Also on RCSI’s website is the entire text of the FELA, plus The Occupational Safety & Health Act of 1970, and the complete text of the Emergency Response Guidebook.

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

 

Crossing Accident — New Jersey Motorist Backs Away From Train Into Trench at Edge of Tracks — $1.5 Million Gross Verdict. As the plaintiff began to cross the Midland Avenue crossing in Elmwood Park in January  2004, she heard a train approaching. Believing that she did not have enough time to cross, plaintiff put her vehicle in reverse and backed up.  When she did so, she veered into a trench at the edge of the tracks. Her vehicle became stuck. Plaintiff exited the car just as it was hit by the train. The impact caused plaintiff to suffer a compression fracture in the lower back. She faulted the train operator for failing to apply brakes in a timely fashion.  The Railroad had an established operating rule which required application of brakes a half mile away from the crossing if objects are seen on the tracks.  The jury apportioned fault 51% to the railroad and 49% to plaintiff.  Alex Lisowski v. New Jersey Transit Rail Operations.

Crossing Accident — Gate Descends Just as Train Enters Crossing — $1 Million Cross Verdict Returned. The plaintiffs’ decedent son, age nineteen, died in November 1999, when his vehicle collided with a train at the Main Street crossing in Rockdale , Texas .  According to plaintiff, the crossing gate came down at the exact same time that the train entered the crossing.  The Plaintiff claimed that the railroad failed to properly inspect and maintain the crossing equipment. They claimed that the gates were not properly synchronized and that the flashing lights were misaligned. In addition, plaintiffs alleged that although the highway crossing analyzer which was part of the warning system was designed to provide specific warning of short warning times which were being displayed at the crossing, defendant’s personnel failed to connect it to a telephone landline so that the report would be received by appropriate officials.  The railroad denied liability and claimed that plaintiffs’ decedent failed to exercise ordinary care for his own safety.  The jury returned a verdict which awarded decedent’s estate $1 million for pain and anguish.  Fault was apportioned 49% to decedent and 51% to the railroad.  Dan V. Legg, et al v. Union Pacific Corp.

Crossing Accident — A Return Trip From Church Picnic Ends in The Death of A Mother, Her Two Children, And Two Friends — Sixth U.S. Circuit Court of Appeals Affirms Grant of Summary Judgment to Railroad. The plaintiff’s decedent wife, accompanied by the couple’s two children and two friends, attended a church picnic in the Blakeslee, Ohio area. Following the conclusion of festivities, the group commenced their return home to Indiana .  The road, a two-lane rural road, intersected with Norfolk Southern tracks at a crossing marked by two standard reflective crossbucks, and a yellow railroad advance warning sign, approximately 800 feet from the crossing. The vehicle driven by decedent’s wife collided with a Norfolk Southern freight train at the crossing. All occupants of the car perished. The train was equipped with a data recorder which established that the train was moving at 61 m.p.h. with its whistle sounding at the time of impact. There was some indication that in the moments prior to impact, plaintiff’s wife noticed the impending peril and attempted to speedup and then to brake so as to avoid a collision.  Plaintiff filed suit to recover for the deaths of his wife and children. His complaint asserted that warning devices were inadequate, that the railroad was traveling in excess of the 60 m.p.h., and that the train crew failed to sound the horn until after it had passed the area designated by law for such a signal. The railroad removed the case to federal court on grounds of diversity of citizenship. There Norfolk Southern sought partial summary judgment on grounds of preemption with respect to the adequacy of signals claim. That motion was granted. The railroad then sought summary judgment as to the remaining claims.  The district court granted that motion as well, as it concluded that the railroad was not the proximate cause of the accident because plaintiffs wife failed to “look and listen” prior to entering the crossing. The court also concluded that no reasonable jury could find that the I m.p.h. violation of the 60 m.p.h. speed restriction was the proximate cause of the collision. The district court reached the same conclusion with respect to the alleged failure to timely sound a warning claim.  The Sixth Circuit affirmed the judgment.  Here, the court pointed out, even though the horn was sounded, plaintiff’s decedent, whose window was rolled down, proceeded into the crossing. According to the court, plaintiff had simply failed to explain how decedent would have been alerted to the train had the whistle started to sound three seconds earlier at 1320 feet from the crossing, given that it failed to sufficiently alert her when it started to sound at 1000 feet from the. Terry Petre v. Norfolk Southern Corp.

FELA – Conrail Workers Claim Solvent Exposure Caused Brain Injuries — Pennsylvania Jury Returns Defense Verdict. This case involved a fifty-four year-old former machinist and a sixty-six year-old former painter. Both men claimed that they developed brain injuries as the result of exposure to solvents in paint, mineral spirits, lacquer thinner and trichloroethane. According to plaintiffs, Conrail provided inadequate respirators and other personal protective equipment. Moreover, plaintiffs alleged, the railroad failed to provide any training to employees with respect to the types of chemicals that it used or the potential health effects of those chemicals. The defense denied liability and claimed that plaintiffs actually received extensive “Right to Know” training.  According to defense witnesses, air sampling was done in areas where plaintiffs worked and showed that the air was at safe levels. The defense denied causation, relying on expert testimony that plaintiffs’ claimed memory impairment and perceived cognitive impairments were consistent with their histories of depression and sleep apnea. The jury returned a defense verdict. Theodore C. Shade v. Consolidated Rail Corp.

Crossing Accident — Minnesota Motorist Crashes into Slow-Moving DM&E Train — Federal Jury Returns Defense Verdict. The plaintiff approached an unmarked crossing operated by defendant before sunrise in September 2004. At the same time, an eighty-eight car DM&E train moving at ten mph was proceeding through the crossing. Plaintiff crashed into the line of cars, sustaining multiple fractures and a collapsed lung. In his suit, plaintiff claimed that the railroad was negligent both as to the operation of the train (including the failure to give adequate warning and the failure to have lights or reflectors on its boxcars) and the maintenance of the crossing itself. The defense denied liability, asserting that the horn was sounded. The railroad also claimed that plaintiff was familiar with the area and knew that trains frequently passed through. The jury returned a defense verdict. William Helland v. Dakota Minnesota & Eastern Railroad.

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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.