As a longtime member of the railroad fraternity, I must confess that
I sometimes lose my objectivity in rail related matters. When blocked by a train at a
crossing, for instance, rather than tap my fingers on the steering wheel, impatiently
waiting for the train to pass, I watch the train. The number and type of locomotives. The
number and type of cars. Sticking brakes? Dragging equipment? Did the engineer sound the
proper signal? Did the warning devices at the crossing activate properly? There are a
number of things for me to do to occupy my time during this time. I’m in the
minority, though. Or at least it seems that way. There are two current developments that
seem to indicate that the majority of the motoring public is anything but content to watch
a passing train. In March, the Illinois Senate passed two bills that would increase the
penalties for railroads whose trains block crossings for extended periods of time. One
bill would impose a jail sentence of up to 30 days for railroad executives cited by the
Illinois Commerce Commission for repeatedly blocking crossings. The other bill would limit
the time trains could block a crossing during rush hours to 10 minutes, even if the train
is moving. In California, the Los Angeles City Attorney has warned the Burlington Northern
Santa Fe that if its trains continue to block roads in the Wilmington area, he will file
criminal charges. A city ordinance forbids railroads from blocking traffic for more than 5
minutes. The charges would be misdemeanor charges. Each delay would be punishable by 6
months in the county jail and a fine of $1,000. In 1998, the City Attorney filed similar
charges against the Union Pacific. The railroad pleaded no contest and was required to
donate $10,000 to a local charity.
SURVEILLANCE – YEA/NAY?
Thanks to everyone who called in response to the article in last quarter’s
newsletter. From the response, it would appear that there is a lot on interest in this
topic. I will explore this in more detail in a future edition. One point I would like to
add before temporarily closing this what I will call inadvertent surveillance. Many
businesses now have surveillance cameras. If in your observations of the claimant, you
find him loading bags of cement onto his truck from the back of the local hardware store,
check to see if there are any cameras that are already catching this action. The hardware
store may have a camera on their dock to prevent theft, or there may be a gas station
across the street with cameras that may have recorded this event. If you do find that
someone else has video that could help your cause, have your attorney immediately place
them on notice that you want a copy of the tape. In most instances, the owner of the tape
will not willingly provide you with a copy, unless ordered to do so by the courts. TV news
programs are notorious in this regard. Inadvertent surveillance is a rare occurrence. The
most common type would be videotape of a sports event (such as a softball game), family
gathering, or something else along those lines. Its rarity is reflected in its value. It
is difficult for the plaintiff to attack either the motivation or the content of the tape.
The jurors do not see these tapes as an invasion of the plaintiff’s privacy on the
part of the defendant. As I said, it will be a rare instance when you have one of these
tapes available, but their value makes your diligence in looking for them well worth the
time.
PENNSYLVANIA CASE LAW –
TRESPASSERS
On January 29, 1999, a federal jury in Scranton, Pa. Returned a defense verdict in
favor of the United States of America, owner-operator of a steam excursion train which
struck and killed two brother aged 12 and 16 years old who were trying to free their ATV
from where it had become stuck on the inside rail in a 5 degree curve. The Court had
dismissed claims against the Delaware Lackawanna Railroad and Lackawanna County Railroad
Authority, the owner and operator of the same rail line earlier by motion. Under
Pennsylvania Law, a railroad owes a very slight duty of care to a trespasser (regardless
of age): to avoid wanton or willful injury. Only if a railroad knows or has reason to know
that trespassers are openly, notoriously, and continuously trespassing on a very narrow
area of its land does the railroad have to act reasonably. On July 9, 1995, shortly after
its grand opening, Steamtown began running a steam excursion 14 miles from Scranton to
Moscow, Pa. which consisted of a restored steam locomotive and nine vintage coaches
carrying 572 passengers. The crew were employees and volunteers of the U.S. National Park
Service. After the train reached Moscow, Pa., the locomotive and tender uncoupled and ran
around to the hind end for the trip back to Scranton. The tracks between Moscow and
Scranton are 1.5% average downgrade with many curves as the right of way follows a stream.
On the return trip, the tender would make it difficult for the crew to see the tracks
ahead, especially on curves. In the locomotive cab was an engineer and fireman whose job
it was to feed the coal into the firebox. About half way to Scranton, in Dunmore, Pa. two
brothers were riding their two ATV’s along the right of way and decided to cross the
tracks. There was no crossing in this area. One of the bikes became stuck in a 5-degree
right hand curve and both boys dismounted to free it from the rail. Both were wearing
helmets and both bikes were running at the time. As the steam engine approached the curve
traveling 20 mph, the fireman (who had a 300 foot sight distance to the accident scene)
noticed that the steam pressure had dropped indicating that the fire needed more coal.
After he stood up to shovel in more coal, the accident occurred. Neither crewman saw the
trespassers prior to impact. The area of the accident was an open wooded area with access
roads throughout. About a year before this accident, the railroad operator of the line
removed dirt build up from between the rails deposited by heavy rains. Local police had
testified that they had broken up beer parties in the field adjacent to the accident site
but that they never informed the railroad of these incidents. Many ATV riders testified
that they had crossed over the track at the location of the accident but not in the
presence of railroad personnel. No trespassing signs were routinely torn down by young
vandals. Although the railroad had seen trespassers at other locations along the 14-mile
stretch of track, there were no prior incidents of trespass reported to the railroad at
the location of the accident. The plaintiffs were the parents of the two boys. They sued
the railroad owner and the operator of the rail line, and the U.S.A. who owned and
operated the train in question. The Court granted summary to the railroad owner under the
Political Subdivision Tort Claims Act and the railroad operator/maintainer on lack of
breach of duty. The case went to trial against the U.S. At trial, plaintiff presented
evidence of prior trespassers but no witness testified that they did so in the presence of
railroad personnel. The parents denied knowing where their sons rode their ATV’s and
denied knowing the rail line was active. Experts testified that the train crew should have
blown its whistle and slowed down for the curve due to limited visibility. An audiologist
testified that a whistle would have been heard when the train was 245 feet from impact had
it been blown. Defense put on the train crew and track inspectors who testified that they
were not aware of trespassers at the scene of the accident. The Chairman of the NORAC
Operating Rules Committee testified that no operating rule was broken. A train accident
reconstructionist testified that the train could not have stopped before impact even if
the crew had seen the boys and that the train itself was visible to the boys for 18
seconds prior to impact. The jury deliberated 5 hours before answering "no" to
the first question on the jury questionnaire: "Did the U.S. know or have reason to
know that trespassers were crossing openly, notoriously, and continuously at the accident
scene?" Thanks to Christopher Hoare of the firm of Marshall, Dennehey, Warner,
Coleman & Groggin, P.C., Philadelphia, PA (
cjh@mdwcg.com) for this case.
VALIDITY OF
INSURANCE POLICY EXCLUSIONS – POLLUTION
On January 20, 1999 the Louisiana Supreme Court ruled in Ducote v. Koch Pipeline that a
"total" pollution exclusion was unambiguous and excluded personal injury claims
resulting from the release of ammonia. Significantly, this decision applies to claims of a
third-party nature arising from the sudden and accidental (rupture) release of a
"pollutant," and reverses a line of Louisiana cases refusing to exclude coverage
on public policy grounds unless an "active industrial polluter" is involved.
Briefly, Ramona Ducote, an employee of Alexander & Ainsworth, was injured while
cutting grass when his equipment struck a pipeline, causing the release of anhydrous
ammonia. Ducote sued Koch Pipeline, the
operator/owner of the pipeline, who in turn filed third-party claims against Ducote's
employer and others, including several insurers under the Louisiana Direct Action Statute.
Common policy exclusions raised by the insurers contained the following language:
Bodily injury or property damage which would not have occurred in whole or in part but for
the actual, alleged or
threatened discharge, dispersal, seepage, migration, release or escape of pollutants at
any time.
The policies also defined "pollutants" as:
.....any solid, liquid, gaseous, or thermal irritant or contaminant including smoke,
vapor, soot, fumes, acid, alkalis,
chemicals and waste. Waste includes material to be recycled, reconditioned or
reclaimed.
The trial court ruled in favor of the policyholders, holding that the pollution exclusions
did not exclude coverage for the claims at issue. Similarly, the Louisiana Third Circuit
Court of Appeal affirmed, refusing to even cite much less construe the language, but
holding that pollution exclusions simply do not apply to "accidental releases"
by businesses which are not "active industrial polluters." The Louisiana Supreme
Court refused to interpret the policies, specifically the exclusionary language, in an
"unreasonable or a strained manner" beyond what is "reasonably
contemplated" so as to achieve an "absurd conclusion." Rather, the Court
applied general rules of contract interpretation in determining the parties' intent and,
citing Louisiana authority on point, stated that the "rule of strict construction
does not authorize a 'perversion of language'.... for the purpose of creating an ambiguity
where none exists....." More important, the Louisiana Supreme Court found no support
for the "active industrial polluter" requirement relied upon by the lower
courts, and held that the plain language excluded coverage whether the release was
"intentional or accidental, a one-time event or part of an on-going pattern of
pollution." In conclusion the Louisiana Supreme Court emphasized that a contract,
with language "facially unambiguous" can be construed within the four corners of
the instrument without looking to extrinsic evidence. Because the pollution exclusionary
language was clear and unambiguous on its face, the claims at issue were excluded.
The Ducote decision from the Louisiana Supreme Court is in the minority of holdings
refusing to differentiate between third-party claims for BI and/or PD arising from
accidental circumstances as compared to the traditional environmental exposures.
Nevertheless, Louisiana is the situs of frequent incidents involving exposure to chemical
releases and class action lawsuits, made more difficult by the nuances of that state's
direct action statute. This represents a major victory for insurers relying upon pollution
language to define and restrict coverage obligations. We also take comfort in the
"pro-industry" nature of this decision from the Louisiana Supreme Court, and are
guardedly optimistic that this portends the attitude that the plaintiff's bar will
confront as some of the recent fiascoes find their way up the appellate channels for
review by justices willing to apply legal principles fairly and reasonably. Thanks to
Scott Carey of the firm of Bates, Meckler, Bulger & Tilson, Chicago, IL (
scott.carey@bmbt.com) for this case.
POINTS OF LEGAL INTEREST
McQuaid v. CSX Transportation, USCD, E.D. Tennessee, March 1999. This case provides
an avenue for dealing with the plaintiff’s expert witnesses, primarily on the grounds
of their credibility. Alleged expert Ken Heathington of Tennessee is a frequent witness in
railroad lawsuits. In this instance, defense attorneys subpoenaed documents to establish
Heathington’s revenues in connection with railroad grade crossing cases. When
Heathington advised the defense lawyers that he had no intention of complying with the
subpoena, they filed a motion to enforce it. After a telephonic hearing, the federal trial
judge in Knoxville issued an order in which he approved enforcement of the subpoena,
saying "In this case, there is information before the court that Dr. Heathington has
testified at trial and by deposition in numerous railroad grade crossing cases. His
financial interest and/or potential bias is a matter that the defendant is entitled to
explore. To that end, the court finds that Dr. Heathington must comply with the Subpoena
Duces Tecum by supplying the documents requested in the subpoena.". Rather than
comply, Heathington withdrew as an expert witness.
Gadsden v. Port Authority Trans-Hudson Corp., 140 F. 3d 207 (2nd Cir. 1998).
This case addresses one of the fundamental provisions of the FELA, namely prior notice.
Under the FELA, the railroad must have prior notice of a safety hazard in order to be held
accountable. In this instance, Harold Gadsden, an employee of the Port Authority, injured
his lower back while mounting a hi-rail vehicle. He claimed that the handhold and
footboard were awkwardly and negligently positioned, requiring him to stretch his body to
reach them. He argued that if they had been more conveniently located, he would not have
been injured. The railroad argued that it had no notice that the handholds and footboards
represented a safety hazard, consequently the accident was not foreseeable or negligent
and Gadsden had no cause of action under the FELA. The federal district court granted a
summary judgement to the railroad. On appeal, the federal appeals court reversed the
decision and ordered a jury trial, stating "The evidence was sufficient for a
reasonable jury to conclude that the lack or lower or additional handholds and footboards
made this an unsafe workplace.". They continued, "A jury could find that PATH
had actual or constructive knowledge of the location of the handholds and footboards that
are in plain view on the vehicles.".
Illinois Central Railroad Company v. Fordice, 30 F. Supp. 2d 945 (S. D. Miss. 1997).
Are train crews required to submit to drug and alcohol testing following grade crossing
accidents? No. So says the Mississippi U. S. District Court. In this case an Illinois
Central train was involved in a fatal grade crossing accident in Rankin County,
Mississippi. The local sheriff required the train crew to submit to drug and alcohol
testing under Mississippi’s Implied Consent Law. Although the crew’s tests
showed no evidence of drug or alcohol use, the railroad felt that this set a bad
precedent. The railroad felt that fitness for duty issues, regulated by the Federal
Railroad Safety Act, should be subject only to federal law and any conflicting state laws
preempted. The railroad filed a lawsuit in federal court asking for an interpretation. The
federal court ruled that train crews are not subject to state laws requiring drug
and alcohol testing, but can be subject to state laws if they engage in reckless or
criminal behavior.
BITS AND PIECES –
EYE ON THE NET
Here are a few websites you may find of interest:
http://www.railmall.com
– This site is currently under construction. When completed, it promises to be a
shopping mall for all things railroad related. Not a fan site, but a working site with
links to suppliers and providers of railroad related services. It sounds like it will be a
very worthwhile stop on the information highway.
http://www.railway-technology.com/ - This may be a preview of what the former site may become. It is a European
listing for suppliers and service providers. While it may not be applicable to your
company, it is an example of what a good railroad based website can be.
http://www.railwatch.org/home.htm
– The best explanation of this website is in their own words,
"RailWatch is a non-profit organization supported by local officials, victims of
railroad accidents, other concerned citizens and shippers from around the country.
RailWatch is dedicated to educating the public about rail safety issues and to hold the
nation’s railroads accountable for their actions." Definitely not a fan site.
While their view of our industry is adversarial, it is a view that often finds its way
into the media.
http://www.catalog.com/hop/ - Trespassers are a problem for all railroads. We have dedicated much space in our
newsletters to this problem and the steps the railroads can take to alleviate this
exposure. In days past, trespassers were primarily dispossessed persons, using the rails
as free transportation. Nowadays, there is a new breed of trespasser, the "Train
Hopper". They consider train hopping is a sport and have a website dedicated to
furthering this activity. Check this website for a good scare.
http://www.usnartc.org
– This is the home of the National Association of Railroad Trial Counsel. If your
corporate counsel is not a member of the NARTC, you should request that they visit this
site and give serious consideration to joining. The NARTC is an invaluable source for case
law, expert witnesses, jury instructions, etc. The cost of membership is very reasonable
for the benefits accorded.
http://www.supt.org/links.htm – This is the website for the American Association of Railroad Superintendents. You
don’t have to be a railroad superintendent to be a member, and they have an excellent
site. Loads of information and links to almost everyone in our business.
RCSI welcomes your input. If you have any questions or comments of interest to our
industry, please contact Dave Gardner at (901) 967-1796 or FAX your message to (901)
967-1788.
Visit the Railway Claim Services, Inc. webpage. It’s located at www.railway-claim-services.com
Railway Claim Services, Inc. is the recognized leader in independent railroad
claims management, which includes investigation, negotiations, and all those things in
between. If RCSI is not already a partner in your loss control and claims management
program are you accepting too much risk?
Railway Claim Services, Inc. 52 South Main Street Lexington, Tennessee
800-786-5204
FAX (901) 967-1788
Email
dave_gardner@railway-claim-services.com
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