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ON TRACK WITH
Volume 7 Issue 1
July,
2001 RAILWAY CLAIM SERVICES, INC.
----- Over 13
Years of Service FROM
THE EDITOR: Taking a spin off from our
above headlines "On Track, etc.", we're back on track with our
newsletter. While we have been
somewhat remiss in sending out the newsletter, we have a legitimate excuse.
Railway Claim Services, Inc. has been swamped with a workload that
merited priority over the newsletter; however, we will make every effort to not
derail again in the near future. I
am new at newsletter editing, so if there is any information or topics you would
like to see covered, please email me at mike_redden@railway-claim-services.com. ALL
YOU WANT TO KNOW (and maybe then some) ABOUT RAILWAY CLAIM SERVICES, INC.
RCSI is a privately held
company, providing claim and litigation services for railroad industry claims.
RCSI provides direct claims management services to over 400 railroad
affiliated companies with related claim services, i.e., risk management, claim
investigation, claim related forms, releases, and telephone support.
RCSI's principal office is in Lexington, Tennessee (toll free number
1-800-786-5204) with claims managers throughout the United States and Canada. These claims mangers have extensive railroad claims
experience in investigations, management, negotiations and related activities on
behalf of the railroad industry and those serving the railroad industry. RCSI is the leader in
providing independent risk management and claims handling services for the
railroad industry. RCSI offers
expertise in the handling of claims involving FELA/employee personal injuries,
crossing accidents, derailments, trespassers/licensees/invitees, product
liability, hazardous material spills, evacuations and any other situations
facing our industry. RCSI can
provide risk management surveys and/or property inspections to identify
potential exposures and develop plans to eliminate these exposures. RCSI can assist you in securing competent legal counsel to
defend your interests. RCSI can
provide total claim services for short line railroads, regional railroads, Class
I railroads (we now list NS and AMTRAK among our clients) or for any
railroad related business, providing claim services for all areas of general
liability, employees and third parties. In
addition to claims handling, RCSI provides risk and claims management, to
include RCSI's copyrighted Claims Manual, policies, procedures, and forms
specific to the railroad industry. Log on to our web site, http://www.railway-claim-services.com
and see detailed accounts of Litigation
Management, Major Claims Investigation and Response, Releases and Forms,
Referral Resource (doctors, attorneys, medical, surveillance, rehabilitation,
structured settlement companies and other professionals as necessary),
Administration of Medical Bills and Medical Records and Invoices, Training,
Third Party Reports and Invoices, Disaster Handling, Environmental Claims,
Negotiations and Collections. Presently RCSI is building a
database of expert witnesses, who have testified in railroad related cases.
This is a work in progress; however, currently we have 239 defense
experts, 483 plaintiff experts, 390 defendant medical experts and 791 plaintiff
medical experts listed in this database. RCSI
is in the process of collecting copies of depositions, but until we have that
complete we can refer you to other counsel who have faced the plaintiff's
experts. They may be able to
provide copies of deposition transcripts and tips on how to approach these
expert witnesses. We can also give
you the names of defense experts who have rebutted the plaintiff's experts. For more information call or email Dave Gardner at
1-731-967-1796 or dave_gardner@railway-claim-services.com. If RCSI is not already a
partner in your loss control and claims management program, allow us to put our
experience and services to work for you to lessen your risk in these respects. THIS
AND THAT ACROSS THE COUNTRY BLE
VICTORY:
The Brotherhood of Locomotive Engineers took a huge leap forward in
organizing the vast short line industry as workers on the Indiana & Ohio
Railroad, a subsidiary of short line giant RailAmerica, when they selected the
BLE as their collective bargaining representative.
The Indiana & Ohio Railroad is a 492-mile short line, which runs from
Flat Rock, Michigan to Cincinnati, Ohio, hauling mostly soda ash, limestone,
automobiles, trucks, lumber, chemicals and various industrial products.
RailAmerica owns nearly 11,000 miles of track in four countries on three
continents. The various unions did
agree to support legislation in the U.S. House of Representatives, known as the
Railroad Track Modernization Act of 2001. The
bill, H.R. 1020, would provide $350 million annually in federal subsidies for
the next three years to help rehabilitate Class II and Class III railroad
infrastructures. RAILROAD RETIREMENT
OVERHAUL: A bill overhauling the
railroad retirement system recently passed the House by a 384-33 vote despite
White House concerns it would violate President Bush's principles for Social
Security and criticism from some Republicans about its $15 billion budget
impact. The legislation would
affect railroad companies and approximately one million workers, retirees and
survivors, allowing pension fund assets workers to be invested in private
securities instead of lower-yielding government bonds.
The idea is to increase earnings, thereby reducing payroll taxes and
boosting benefits. Other major
changes for the 1930s-era program include retirement at age 60 for employees
with 30 years' experience without reducing their benefits, more generous
benefits for surviving spouses and a reduction in vesting requirements from 10
years to 5 years. On the net:
Congress: http://thomas.loc.gov
and American Association of Railroads: http://www.aar.org.
CSX
DERAILMENT:
On July 18th CSX accomplished something that no one could do
for over 2300 plus ball games, stop Cal Ripken from playing ball for the
Baltimore Orioles. A train
derailment, acid spill and subsequent fire in a 1.5 mile long tunnel near Camden
Yards brought the city to a virtual standstill, halting all traffic for hours,
closing businesses in the proximate area and prompting the postponement of three
Baltimore Orioles games. NTSB is
investigating the cause of the accident and their investigation is focusing on a
possible broken water main. However,
the main issue to determine is, "Which came first, the chicken or the
egg?" Did the broken
water main cause the derailment or did the derailment cause the broken water
main? Needless to say, a lot is
riding on the results of the investigation.
Damages include the tunnel, cleanup, overtime for police and
firefighters, business losses, Orioles game cancellations, and claims arising
out of traffic control. Did I hear
someone say "class action?" UPCOMING
CONVENTIONS:
8th Annual Regional Railroad Liability Seminar, 8/23 through
8/25, The Lodges at Deer Valley, Park City, Utah, contact person Joanne Easton,
1-847-318-4626. General Claims Conference,
Twenty Fourth Annual Meeting, 9/19 through 9/21, Kansas City, Missouri, contact
number is 1-318-676-6305 88th Annual American
Short Line and Regional Railroad Association Meeting, 9/30 through 10/2, Anaheim
Marriott Marquis Ballroom, QUARTERLY
TOPIC FROM THE EDITOR Investigations:
The prompt and complete investigation of an accident/incident can be the
difference in losing or winning a lawsuit or holding the claims payment to a
minimum. This should be done in all
incidents whether great or small because one never knows when the small
incident/claim will increase to a larger one.
FELA has a three-year Statute of Limitations and state statutes run
anywhere from one to six years, depending on the individual state. Promptness is
important because you tie down the witness statements while the facts are fresh
on their mind. You obtain photos of all pertinent aspects as to how they
appeared that day and not weeks or months later.
You also inspect, document and preserve any of the evidence, material or
equipment that might be involved. If
a piece of equipment is involved, save it.
Keep a record of who and when someone handled it until it was placed in
storage. There is always the chance
of product liability on the part of the manufacturer for poor design or a flaw
in their product. If a witness
tries to change their testimony at a later date your argument is that you
secured their testimony when it was fresh on their mind and thereby give an
indication that the subsequent change in their testimony is not the truth.
Negative or neutral statements are equally as important as positive
statements. We need to know and
prepare for the testimony we will face. Often
times an outside witness to a crossing accident will tell an investigator
immediately following a crossing accident that they could not say if the whistle
did or did not blow; however, if a plaintiff's attorney gets hold of them 12
months post incident date their testimony, more times than not, will be that the
train did not blow the whistle. There's
a big difference in that type of testimony. RCSI has guidelines to go by on
any type of accident and we will be glad to share these guidelines with you.
However, in the case of a moderate to serious accident/injury, it is
recommended that someone from RCSI be called in to investigate for the short
line. There are so many resources
we have at hand and our claims manages are equipped with the tools, knowledge
and training to protect your long-term interests.
Your job is to haul freight and make a good living at it.
Our job is to help see that no one takes your money when it is not
warranted and that all claims are handled and closed consistent with the facts
and circumstances. ON
A PERSONAL NOTE: The NS and the claims field lost two giants in the
past few weeks, Bill Millwood and Gordon Bird. On behalf of RCSI, we extend our deepest sympathy to their
close friends and families. POINTS OF LEGAL
INTEREST Height
of Steps on New Locomotive a defect or should Preemption prevail as claimed by
Railroad Georgia Court
refuses to grant a Motion for Summary Judgment. A
locomotive engineer was working on a wide body locomotive in March 1997 and he
was instructed to make a movement that included this particular locomotive.
The lead locomotive was built in 1996.
Plaintiff had been on it several times in the past, but the locomotive's
design was primarily for road service rather than yard switching.
Plaintiff walked several feet on the upper level until he came to the
steps that led to the lower level walkway.
While stepping down, the plaintiff fell forward, striking his left knee
on one of the posts, which supported the handrail, at which time he claimed he
fell because the steps were twelve inches apart in height and higher than he
expected based on his previous experience.
Suit was filed and was countered by the defendant with a Motion for
Summary Judgment. The defendant
maintained that the plaintiff's claim was preempted by the FRA's regulations of
locomotive design, but admitted there were no regulations specifying the design
of the locomotive walkway steps of this locomotive. The defendant claimed that the FRA's review and approval of
the locomotive's design, coupled with the FRA's inspection of the locomotive
constituted "orders related to railroad safety" within the meaning of
49U.S.C. 20106. The court
determined that approval by the FRA did not equal an order issued by the FRA.
Therefore, it was determined by the court that plaintiff's action was not
preempted. Motion for summary
judgment denied. Don A. Hall vs.
Central of Georgia Railroad Co., U. S. District Court, Middle District of
Georgia at Albany. Case No.
1:00-CV-49-1 (WLS). Rearden
v. Peiora & Peking Union Railway Co., 26F.rd 52 (7th Cir 1994).
Locomotive
engineer sustained loss of eye when a pellet fired from a BB gun struck him as
the train was passing by a Peoria, Illinois public housing project.
In his FELA suit, plaintiff alleged the railroad's failure to patrol the
area, install bulletproof glass or provide goggles. The district court granted summary judgment to the defendant,
and the Seventh Circuit affirmed. It
was determined by the court that the locomotive had protective windows, but the
crew left the windows open. The
court noted that the windows being closed would not have created an unsafe
condition, and the record showed that the railroad had provided the means to
prevent this injury. The Seventh
Circuit stressed that the FELA does not make the railroad an insurer against
injuries, and it does not require the railroad to provide precautions that are
impossible to defeat. Eastern
Idaho Railroad Worker Injured When Empty Car Derails Due to Snow Buildup on
Track State Supreme Court Affirms Verdict.
The
plaintiff's three-man crew was shoving into an industry siding with plaintiff
riding the right side ladder of the lead car and the other two members in the
locomotive. The lead car derailed
due to snow on the track. Plaintiff
was pinned between the empty car and the building.
Plaintiff presented evidence that the railroad's policy was to clear the
snow before proceeding any further. The
two crew members on the locomotive decided to proceed without clearing the track
because of the time elements involved. Even
though the railroad had a rule against an employee riding a car on the same side
as a structure, it was not enforced by the railroad.
There was expert testimony that the best and safest method was to ride on
the same side of the car as the engineer was seated in the locomotive.
The railroad argued that plaintiff's negligence caused his injuries.
A verdict was rendered in favor of plaintiff for $900,000.
The railroad was attributed 80% fault and plaintiff 20%.
The railroad appealed, but the appeals court affirmed the judgment.
Kyle Howell vs. Eastern Idaho Railroad, Inc., 24 P 3d 50 (Idaho 2001) Premises
Liability Waste Removal Contract Employee Slips On Ice From Train Yard's
Leaky Hydrant, Thereby Causing Herniated Cervical and Lumbar Discs - $900,000
New York Mediation Settlement. Age
41 at the time, the plaintiff was employed by a waste removal company.
He was instructed to empty sewage waste from the trains into a pumper
truck. The plaintiff claimed
that he slipped and fell on ice adjacent to the tracks in the Babylon Yard as he
attempted to hook up the pumping hose. The ice was allegedly caused by a leaky
hydrant, and it was alleged the defendant had knowledge of this existing hazard.
Defendant argued their case on the fact that plaintiff knew beforehand of
the condition that was open and obvious. This
case was settled in mediation for $900,000.
Andrew and Jacqueline Scaduto vs. LIRR.
Suffolk County (NY) Supreme Court, Index No. 029219/97. Premises
Liability Escalator Fall Leaves Elderly Passenger Unable to Walk Without
Assistance Pennsylvania Federal Court Jury Awards $4.5 million Verdict
against Amtrak The
79 year old plaintiff disembarked from an Amtrak train at the 30th
Street Station in Philadelphia. He was unable to locate an elevator from the
station platform to the concourse or an Amtrak Redcap to assist him with his
luggage. Plaintiff decided to use
the escalator. It stopped abruptly
between floors and then started again without warning, causing plaintiff to be
knocked off balance, falling to the station platform.
Initially, he was temporarily paralyzed from the neck down but, after
months of physical therapy, he was able to move.
He remains dependent on a wheelchair, cane and walker.
He claimed that Amtrak negligently restarted the escalator without first
clearing it of passengers and that Amtrak was negligent in not providing
assistance to elderly passengers. Lorenzo
v. National Railroad Passenger Corp., U.S. District Court, Eastern District
of Pennsylvania. Another
Premises Liability Third Party Truck Driver Trips Over Protruding Bolt,
Sustaining Injury To Rotator Cuff - $521,367.78 Gross Verdict In Florida.
A 46 year-old independent truck driver contractor entered the defendant's
property on May 26, 1998 to pick up a container.
He parked his vehicle and proceeded to walk toward a luncheon truck
located on the premises, at which time he stumbled over a bolt/screw that was
protruding approximately one and one-half inch up from the pavement.
The fall resulted in rotator cuff tear, requiring two surgeries and
plaintiff is no longer able to operate a truck due to the resulting
disabilities. The jury apportioned
5% negligence to the plaintiff, and 95% negligence to the defendant. Thus,
the plaintiff received a net damage award of $495,299.39.
The defense motion for new trial was denied, according to the Florida
Jury Verdict Reporter. Jose Rivera vs. Florida East Coast Railway Co., Dade
County (Fl) Circuit Court, Case No. 98-27435 CA 20. Trespassers
Intoxicated Male Transient Asleep And/Or Unconscious On Tracks, In Repeated
Trespassing Incident, Was Struck and Fatally Injured By Slow-Moving Train
Defense Verdict In Utah. Patrick
Jim was a 30 year-old transient when he was struck and killed at the defendant's
Ogden Yard on the night of September 10, 1996.
The decedent was either asleep or unconscious and subsequent blood
alcohol tests showed his level to be .19 to .25.
The train was traveling around eight miles per hour and located in a
curve at the time of the accident. Due
to the curve the headlight of the train was not directly following the path of
the track so the decedent was not visible, although the engineer testified that
he eventually saw an object, slowed, but could not tell what it was.
By the time he identified the object as a person it was too late to stop,
even though he applied the emergency brakes. He was also sounding the whistle prior to the locomotive
reaching the decedent. Plaintiff's
attorney claimed that, because this area was near a "hobo Jungle", the
railroad should have taken more precautions.
The defense moved for summary judgment and it was granted.
Evidence was entered that showed the decedent had been evicted from the
premises some months earlier and knew he was trespassing.
The Court found no negligence on the part of the railroad and ruled that
the railroad hd no duty to stop its trains every time there is some unidentified
object observed on the track. Ray
Jim, Sr. and Cecelia Jim V. Union Pacific Railroad Co., U.S. District Court,
District of Utah, Case No. 1:97 CV 6. LURKING LIABILITY:
As you see from some of the above decisions concerning invitees/licensees
sustaining personal injuries under liability circumstances, this type
claim/lawsuit can be expensive; however, a lot of these incidents can be avoided
with an able safety department, or in the alternative a risk management/property
inspection by RCSI, only one of many services offered to the short line
industry. RCSI
welcomes your input. If you have
any questions or comments of interest to our industry, please contact either
Dave Gardner at (901) 967-1796 or FAX your message to (901) 967-1788 or Mike
Redden at (615) 754-0518 or FAX your message to (615) 758-3483. Visit
the Railway Claim Services, Inc. webpage. Its
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
or mike_redden@railway-claim-services.com
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