Volume 8 Issue 4
OCTOBER
2002
RAILWAY CLAIM SERVICES, INC.
Our 14th Year of Service
MESSAGE FROM THE EDITOR
POINTS TO PONDER
TRIVIA AND HUMOR
THIS AND THAT ACROSS THE COUNTRY
QUARTERLY TOPIC
HISTORY OF THE ONE-DOLLAR BILL
POINTS OF LEGAL INTEREST
RCSI INFORMATION
FROM THE EDITOR:
SPECIAL
NOTE: Railway Claim Services, Inc. (RCSI) extends a special thanks to Norfolk
Southern Railway (NS)
for allowing RCSI to assist their claims handling
efforts following a derailment and evacuation commending on
September 15, 2002
at
Knoxville
,
Tennessee
. After
the evacuation was lifted, NS claims officers established a temporary claim
center within the previously evacuated area.
NS is to be commended for their compassionate and fair handling of the
Knoxville
residents.
NS is a Class I railroad as well as a first class railroad.
RCSI appreciates the courtesies extended to us by NS and their claims
department personnel. In addition to
Railway Claim Services, Inc. on-going commitment managing claims for the short
line and regional railroad segment of the industry,
in 2002 Railway Claim Services, Inc. assisted three (CPR, CNIC and NS)
Class I railroads with their disaster claims handling.
MORE:
Allow me to reminisce about a subject that is dear and close to my heart
– railroading.
On
July 1, 1862
, President Abraham Lincoln signed into law the
Pacific Railway Act, which created the Union Pacific Railroad
Company and chartered the company and the Central Pacific Railroad Company to link
the country together from
Omaha
,
Nebraska
to
Sacramento
,
California
. UP
continues to this day to build on the rich history and is one of several Class I
railroads, as well as hundreds of short lines, serving this great country.
Union Pacific began building west from
Omaha
with 250 workers and a goal of laying two miles of
track a day, working seven days a week, 12 to 16 hours a day.
The work force grew to 10,000 and encountered every obstacle possible,
from blizzards and drought to mountains and canyons.
Almost seven years later on
May 10, 1869
Union Pacific linked with the Central Pacific at
Promontory Summit in
Utah
to complete the journey.
The railroads have played an
important and integral role in
America
’s history and will continue to do so in the
future. During World War I and II
thousands of troops and equipment were moved on a daily basis across country.
When I was a youngster visiting my grandparents in Huntingdon, Tennessee
and playing on the L&N
Railroad (then NC&STL) mainline and
playing ball in an old field adjacent to the L&N track next to Hayes
Aircraft in Birmingham, Alabama, never did I realize that one day I would be
railroading as a career and settling claims where foolish folks such as myself
were on the track via foot or vehicle when they were not supposed to be.
By the way, I never did toss a rock at a train.
Since I started my career on
November 11, 1967
railroading has undergone many changes, some good
and some not so good. While the
L&N covered 13 states and approximately 10,000 mile of track, operating from
Miami
,
Florida
to
Chicago
,
Illinois
, it operated as a family lines railroad.
In fact, once the Seaboard
Coast Line took control and ownership of
L&N in the early to mid-seventies, the name was changed to Family
Lines System.
Unfortunately, with growth and employment increases Family Lines System
lost that identity along the way. To
prove my point they also changed their name to Seaboard System
Railroad.
The short lines that have emerged
through the last quarter of the past century have presented the opportunity to
return to that type of family atmosphere railroading.
This style is not as easy to adhere to when a railroad or any company
operates on a large scale.
What goes around comes around. Now
in the twilight of my career I have the opportunity to railroad as I did when I
first started with the L&N. And
to all the short lines out there that utilize Railway Claim Services, Inc.’s
services I will be forever grateful until the day comes when I “pull the
pin.”
*************************************************************************************************Philippians
4:13
– I can do all things through Christ who
strengthens me.
*************************************************************************************************
POINTS TO PONDER:
Friendship is like a bank account.
You can’t continue to draw on it without making deposits.
Asked for the secret of success,
one executive who had worked his way up through the ranks said, “It’s
simple, I never had a job I didn’t like.”
It’s tough to climb the ladder
of success, especially if you’re trying to keep your nose to the grindstone,
your shoulder to the wheel, your eye on the ball, and your ear to the ground.
Of all the things you wear, your
expression is the most important.
Politicians and diapers have one
thing in common. They should both be
changed regularly – and for the same reason.
If one morning I walked on top of
the water across the
Potomac
River
, the headline that afternoon
would read “President Can’t Swim.” Lyndon
B. Johnson
It is hard to believe that a man
is telling the truth when you know that you would lie if you were in his place.
H.L. Meneken
TRIVIA & HUMOR:
Perseverance
– Beginning at age 23 and in age
order, he failed in business, ran for the Legislature and lost, again failed in
business, elected to the Legislature, sweetheart died, had a nervous breakdown,
defeated for Speaker, defeated for Elector, defeated for Congress, elected to
Congress, defeated for Congress, defeated for Senate, defeated for Vice
President, defeated for Senate, elected President of the United States.
Who is he? Answer at the end
of this newsletter.
More
Perseverance – Some years ago a man over
60 was offered nearly $200,000 for a restaurant-motel-service station business
that he had spent his life building up. He
was not ready to retire, turned the offer down; the state subsequently built a
new highway that bypassed his business. He
lost his business, was flat broke, but persevered.
At age 65 he took his special recipe, kissed his wife good-bye, traveled
in his battered old car to other restaurants selling his product.
A few years later he had built a nationwide franchised restaurant chain.
Who is he? Answer follows the
above answer.
My mind works like lightening.
One brilliant flash and it is gone.
The only time the world beats a
path to your door is when you’re in the bathroom.
An
Auburn
graduate said, “I was worried that my mechanic might try to rip me off.
I was relieved when he told me all I needed was turn-signal fluid.”
I’m so depressed…my doctor
refused to write me a prescription for Viagra.
He said it would be like putting a new flagpole on a condemned building.
“God speaks” billboards in the
Cleveland
area:
Let’s meet at my house Sunday
before the game.
What part of “Thou Shall
Not…” didn’t you understand?
Keep using my name in vain.
I’ll make rush hour longer.
Will the road you’re on get you
to my place?
Big bang theory.
You’ve got to be kidding.
You think it’s hot here?
Have you read my Number One best
seller? There will be a test.
Don’t make me come down there.
THIS AND THAT ACROSS THE COUNTRY
Railroad Train Crew Work Hours.
New
Transportation Safety Bill, H/R. 4761, seeks to limit train crew work hours and
establish national toll-free number for motorists to report grade crossing
problems. A National Transportation
Safety Board study showed train crews work as much as 432 hours a month,
compared with 360 hours for truck drivers and 100 hours for airline pilots.
Carloads And Containers Show Impressive Increase.
The
AAR
reported in June that freight on U.S. Railroads
reached its highest level this year during the week ending June 15th,
and intermodal traffic continued its recent surge.
Carload freight totaled 348,048 cars, up 6.6% from the corresponding week
last year, with loadings up 13.0% in the west but down 0.4% in the east.
Interposal traffic not included in freight carloads rose 14.1% on the
average container.
Ted Williams, a Great American.
Ted
Williams passed away on July 5th, shortly after the publication of
this last newsletter. Even in this
type forum I would be remiss not to acknowledge Ted Williams’ passing.
Ted Williams was not a great American because he was one of the greatest
baseball players to ever step onto a diamond. Although that achievement would be
included in his assessment. He was a
great American because of his service to this country and how he lived his life.
He lost five years from his baseball career while serving as a Marine
Corps pilot in World War II and the Korean War.
As a rookie in 1939 Williams had 145 RBI’s.
He was a two time MVP and twice won the Triple Crown award (Batting
Average, Home Runs and Runs Batted In). Williams
had a lifetime batting average of 344 and hit 521 homers.
Had he not served in two wars he would have been much closer to Hank
Aaron’s lifetime home run figure. In
1941 Williams played a doubleheader on the last day of the season and had six
hits, bringing his batting average to .406.
His average going into the game was .3995, so he would have been
attributed with hitting .400 if he had elected to sit out those last two games.
Had he not been successful his season ending batting average would have
been less than .400. Williams is the
last player to have a .400 batting average.
In 1966, Williams’ first eligible year, he was elected to the Hall of
Fame. Ted Williams is the only
person who is a member of the Baseball Hall of Fame and the Fishing Hall of
Fame. While Williams will probably
be remembered mostly for his baseball achievements.
I for one will always remember him first for placing his personal goals
on hold while he fought in two wars to help keep this great country free.
Personally, I classify him as a hero.
Today, may Ted Williams be playing against some of the great players who
preceded him to Heaven’s Field of Dreams.
Railroad Retirement Board News.
Changes
late last year to railroad retirement laws that have prompted a surge in train
and engine crew hiring across among the industry.
An RRB spokesman said that more than 6,000 railroad workers had applied
for retirement through April 2002, compared with 6,165 in all of last year.
Commenting on the RRB report, AAR Spokesman Tom White further noted that
over half of all
U.S.
rail workers are 45 or older.
(ffd.
Atlanta
Journal Constitution)
Railroad Safety Improves.
According
to Edward Hamberger, president and chief executive of the Association of
American Railroads,
U.S.
railroads have become a much safer place to work.
In his testimony prepared for the Senate Commerce Committee’s Surface
Transportation Subcommitee Hamberger announced that railroad employee casualties
have dropped 71% since 1980 and 57% since 1990.
Train accidents dropped 64% from 1980-2001 and 12% since 1990.
Remote Control Railroading.
Edward
Hamberger also shared these statistics with the same committee concerning
“Portable Locomotive Control Technology.”
This technology allows the employee on the ground to operate the train,
eliminating the possibility of misread hand signals or garbled radio
communications. Canadian
National Railway reported that accident rates in
yards using radio-control technology were 44% lower than in yards using
conventional technology. Canadian
Pacific reported a two-thirds reduction in
accidents rates. CSX
Transportation has 44 of the devises in use and
plan on adding 100 more by the end of 2002.
QUARTERLY TOPIC –
“What Is Federal Preemption?”
“The crossing should have had gates.” “The train was speeding.”
“The locomotive should have had ditch lights.”
The cars should have been
reflectorized.” These are arguments that railroads used to face in almost
every lawsuit over a grade crossing accident.
However, since 1993 the courts have increasingly disallowed these
arguments because of the legal doctrine known as “federal preemption.” In
fact, this doctrine has become one of the most powerful legal tools available to
railroads in grade crossing cases as well as some FELA cases.
This article will give a brief summary of what federal preemption really
is to foster a better understanding of the doctrine.
Federal preemption is a legal doctrine that is based on Article VI of the
United States Constitution. This
Article is also known as “The Supremacy Clause.”
In short, this clause states that the United States Constitution, laws
and treaties shall be the supreme law of the land.
Federal preemption comes about when there is a conflict between federal
law and state law. In such cases
federal law governs.
Obviously, there are many areas where federal law and state law cover the
same subjects and appear to be in conflict with each other.
Courts, however, are reluctant to use preemption, and use it only in two
circumstances. The first is where
Congress specifically states that the federal statute is intended to preempt
state law. The second is where the
federal law is so complete that it “occupies the field” of the subject of
the legislation.
In 1993 the U.S. Supreme Court decided that when Congress passed the
Federal Railroad Safety Act of 1970 it intended to occupy the field of railroad
safety. In passing the F.R.S.A
Congress stated that the Act was intended to promote uniformity of rail law and
regulations. However, existing state
law was to remain in force until the Secretary of Transportation (acting through
the FRA) adopted specific regulations in the areas in which he was authorized by
the FRSA to act.
As a result of the Supreme Court’s decision there are areas of railroad
safety that are not “preempted.” An example is where the FRA has not
expended sums or otherwise acted to upgrade a specific crossing.
Still, where a crossing has been upgraded by the expenditure of federal
funds, an argument that is should have had more protection that was ordered by
the FRA, or a state agency with FRA funding, cannot be made.
HISTORY OF THE ONE-DOLLAR BILL
Look at a one-dollar bill that
first came off the presses in 1957 in its present design. This so-called paper
money is, in fact, a cotton and linen blend with red and blue minute silk fibers
running through it. We have all
washed it without it falling apart. A
special blend of ink is used, the contents we will never know.
It is overprinted with symbols and then it is starched to make it water
resistant and pressed to give it that nice crisp look.
If you look on the front of the bill you will see the United States
Treasury Seal. On the top you will
see the scales for a balanced budget. In
the center you have a carpenter’s square, a tool used for an even cut.
Underneath is the key to the United States Treasury.
That’s all pretty easy to figure out, but what is on the back of that
dollar bill is something we should all know.
If you turn the bill over you will see two circles.
Both circles, together, comprise the Great Seal of the
United States
. The
First Continental Congress requested that Benjamin Franklin and a group of men
come up with a Seal. It took them
four years to accomplish that task and another two years to get it approved.
If you look at the left-hand circle, you will see a Pyramid.
Notice the face is lighted, and the western side is dark.
This country was just beginning. We
had not begun to explore the West or decided what we could do for Western
Civilization. The Pyramid is
un-capped, again signifying that we were not even close to being finished.
Inside the capstone you have the all-seeing eye, an ancient symbol for
divinity. It was
Franklin
’s belief that one man couldn’t do it alone, but
a group of men, with the help of God, could do anything.
“IN GOD WE TRUST” is on this currency.
The Latin above the pyramid, ANNUIT COEPTIS, means, “God has favored our
undertaking.” The Latin below the pyramid, NOVUS ORDO SECLORUM means, “A new
order has begun.” At the base of
the pyramid is the Roman numeral for 1776. If
you look at the right-hand circle and check it carefully you will learn that it
is on every
National
Cemetery
in the
United States
. It is
also on The Parade of Flags Walkway at the Bushnell,
Florida
National
Cemetery
, and is the centerpiece of most heroes’ monuments.
Slightly modified, it is the seal of the President of the
United States
, selected as a symbol for victory for two reasons.
First, he is not afraid of a storm; he is strong; and he is smart enough
to soar above it. Secondly, he wears
no material crown. We had just
broken from the King of England.
Also, notice the shield is unsupported.
This country can now stand on its own.
At the top of that shield you have a white bar signifying congress, a
unifying factor. We were coming
together as one nation. In the
eagle’s beak you will read, “E PLURIBUS UNUM,” meaning “one nation from
many people.” Above the eagle you
have thirteen stars representing the thirteen original colonies, and any clouds
of misunderstanding rolling away. Again,
we were coming together as one.
Notice that the eagle holds an olive branch and arrows in his talons.
This country wants peace, but we will never be afraid to fight to
preserve peace. The eagle always
wants to face the olive branch, but in time of war his gaze turns toward the
arrows.
They say the number 13 is an unlucky number.
This is almost a worldwide belief. You
will usually never see a room numbered 13 or any hotels or motels with a 13th
floor. But think about this.
There are 13 colonies, 13 signers of the Declaration of Independence, 13
stripes on our flag, 13 steps on the Pyramid, 13 letters in the Latin above, 13
letters in E Pluribus Unum”, 13 stars above the eagle, 13 bars on that shield,
13 leaves on the olive branch, 13 fruits, and if you look closely, 13 arrows.
Too many veterans have given up too much to ever let the meaning fade.
Many veterans remember coming home to an
America
that didn’t care.
Too many veterans never came home. Share
this information with everyone you can so they will know what is on the back of
the UNITED STATES ONE-DOLLAR BILL and for which it stands.
And, MAY GOD BLESS
AMERICA
!
POINTS OF LEGAL INTEREST
Daniel B. Kenney vs. Union Pacific Railroad Company
and
Burlington
Northern & Santa Fe Railway Company –
U.S.
District Court, Southern District of Texas, Case No.
G-01-203. Plaintiff was a member of
a train crew that struck a huge boulder and derailed the lead locomotive.
Plaintiff filed a FELA suit alleging that the railroad failed to
adequately train him in what to do in such an accident.
He also alleged the locomotive was uncrashworthy because it was not
equipped with seat belts, padding or a refuge/crash box.
He sustained a herniated disc at L5-S1.
Defense counsel argued that plaintiff’s own union membership had voted
against seat belts and refuge boxes and no railroad in
North
America
provides such
accommodations. Padding on the floor
would have been a violation of safety regulations and the training argument had
too many variables.
Defense verdict
Justin Clemens, a minor, by his mother and legal
guardian, Dante Clemens vs. Estate of Tracy Uhl and Conrail, et al – Elkhart Superior Court, Elkhart, Indiana, No.
20D02-9804-CT-239. A Conrail train
struck a vehicle sitting on the track resulting in the deaths of
Troy
and Tracey (8 months pregnant) Uhl and their 3 year
old son. Trial judge grants summary
judgment upon finding that the train had
not exceeded the federally established 60 mph speed limit; that the locomotive
engineer had sounded the whistle, and had applied the brakes and cut the
throttle before striking the decedents
Truck, which was standing on the
crossing tracks between properly operating closed safety gates. (Editors
Note: Federal Preemption at work.)
Loren Lewandowski vs.
Burlington
& Northern and Santa Fe Railway Co., -
Scotts
Bluff
County
(NE) District Court, Case No. C101-50.
While working on a bridge plaintiff slipped on the creosote of a crosstie
and fell approximately 25 feet to a rocky creek bed sustaining multiple leg and
foot injuries, bulging and herniated discs.
Plaintiff alleged failure to provide fall protection and the railroad
accepted liability for the accident. The
issue of damages was hotly contested on the issue of lost wages, as well as pain
and suffering. Jury verdict in the
amount of $4,031,219.00
Daniel Brinson vs. Consolidated Rail Corporation –
U.S.
Court of Appeals for the Second Circuit, Case No.
01-7448. Plaintiff was working as a
brakeman and sustained an injury while throwing a switch.
The District Court granted summary
judgment, concluding that the plaintiff had
not adduced any evidence of railroad negligence and the U. S. Court of Appeals
confirmed.
The answer to the first perseverance question is Abraham Lincoln.
The second answer is Kentucky
Fried Chicken Founder Colonel Harlan Sanders.
THE FOLLOWING IS FROM OUR FRIENDS
AT THE NATIONAL ASSOCIATION OF RAILROAD TRIAL COUNSEL, AS PRINTED IN A RECENT
NEWSLETTER
“From Randal
Little, zee boss of Railway Claim Services we have just received a copy of a
two-page article published in Claims Magazine about the “Black Boxes” in
certain GM motor vehicles (also known as SDM modules) which supposedly contain
valuable crash data that can be used to help reconstruct vehicular collisions.
These two pages plus another page from Applied Technical Services of
Georgia
(who say they can economically gather the SDM
information and provide expert assistance in interpreting the data) can be yours
for $1.50 sent here. Meanwhile …. Randal Little is interested in hearing
from any lawyers who have “experience” in dealing with these vehicle Black
Boxes. Please contact him if you have experience. We regularly
cooperate with him—and he with us. Contact: J. Randal Little,
Director-Operations, Railway Claim Services,
52 South Main Street
,
Lexington
,
Tennessee
38351
. Telephone 731-967-1776. Fax
731-967-1788. Email: randal_little@railway-claim-services.com.
Web site: www.railway-claim-services.com. Thank you!”
Diagnostic Modules (Black Boxes)
in automobiles are new technology which hopefully will allow railroads to defend
against some unwarranted claims. Please
let us know of your personal experiences or share articles you read where this
technology is used. We will share
this information across the legal and claim segments of the rail industry.
RCSI welcomes your input. If
you have questions or comments of interest to our industry, please contact Dave
Gardner or Randal Little at the email addresses or phone numbers below.
Editor’s
Note: If you prefer to receive future
editions of this newsletter via email, please send an email with that request.
Email distribution is quicker and saves postage and handling.
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?
For more information you can contact:
Dave Gardner (dave_gardner@railway-claim-services.com)
Randal
Little (randal_little@railway-claim-services.com)
52
South Main Street
Lexington
,
Tennessee
38351
1-800-786-5204
FAX
(731) 967-1788
| 