Volume 11 Issue 1                                       January, 2004


RAILWAY CLAIM SERVICES, INC.          Our 17th Year of Service













 As we start a new year with hope and promise we extend our deepest thanks.  Sometimes we fail to say thanks for allowing us to provide services, so I take this brief opportunity to say THANK YOU for allowing Railway Claim Services, Inc. to be a part of your much greater work in the furtherance of your company’s goals.


With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.  Abraham Lincoln, From his Second Inaugural Address, Saturday, March 4, 1865


  Philadelphia , Pennsylvania .  An employer that goes through employee e-mails stored in the employer’s computer system does not violate the Electronic Communications Privacy Act (ECPA), a federal appellate court has ruled.   The case before the 3rd U.S. Circuit Court of Appeals, Fraser vs. Nationwide Mutual Insurance Co., was a wrongful termination suit filed by Richard Fraser, who had been an independent insurance agent for Nationwide Mutual Insurance Co.  Among other charges, Mr. Fraser said in his suit that Nationwide violated the ECPA when it examined his e-mail.   The 3rd U.S. Circuit Court of Appeals affirmed a lower court’s opinion on this issue.  The appellate court in Philadelphia said the ECPA prohibits “intercepts” of electronic communications such as e-mail. “Nationwide argues that it did not ‘intercept’ Fraser’s e-mail within the meaning of Title 1 (of the ECPA) because an ‘intercept’ can only occur contemporaneously with transmission, and it did not access Fraser’s e-mail at the initial time of transmission,” the unanimous, three-judge panel said in its December 10, 2003 decision.   “Every circuit court to have considered the matter has held that an ‘intercept’ under the ECPA must occur contemporaneously with transmission,” the ruling states. “While Congress’ definition of ‘intercept’ does not appear to fit with its intent to extend protection to electronic communications, it is for Congress to cover the bases untouched. We adopt the reasoning of our sister circuits.”   The opinion also said that because the e-mail was stored on Nationwide’s system, which it administered, the insurer was exempt from liability as a communications service provider.

Madison County , Illinois .  Madison County, Illinois, tops the American Tort Reform Association’s list of 13 “judicial hellholes” for 2003.   The list, released at a Washington press conference in November, identified those jurisdictions where, ATRA believes, “court procedures and the law are systematically applied in an unfair and unbalanced manner against defendants.” Madison County , which was also on last year’s inaugural lists of judicial hellholes, has long had a reputation as a venue of choice for plaintiff’s attorneys seeking a pro-plaintiff court in which to file national class-action lawsuits. Last year’s list, however, did not rank jurisdictions in terms of their unfairness to defendants.   The rest of the worst five on ATRA’s lists were Jefferson County , Texas ; Mississippi ’s 22nd judicial circuit; Hidalgo County , Texas ; and Orleans Parish, La. ATRA also branded three additional jurisdictions as worthy of “dishonorable mention.”

Sacramento , California .  A Sacramento, California Superior Court jury ordered Union Pacific Railroad must pay $500,000 in damages to an African American laborer for racism he claimed to have endured from white co-workers and bosses during his first 2 1/2 years with UP.   The plaintiff, Thomas Franklin, 42, of Sacramento , still works for UP but is no longer working in its Roseville division where the events that prompted his suit against the company are alleged to have occurred.  The trial lasted two months, and the jury deliberated for almost two days.  The jury found against the UP for discrimination and racial harassment between June 1998 and December 2000 at UP's signal construction department in Roseville .  According to testimony Franklin was the lone African American on an otherwise all-white work crew.  Franklin , claimed that he was subjected to racial slurs, racist jokes and comments and had tools thrown at him and other discriminatory treatment.  The jury awarded him $470,000 for emotional distress arising from the events, plus $30,000 for lost wages during a six-month stress-related leave that began in December 2000.


1.   The first railroad line in America was 16 miles long.  It was built by Delaware and Hudson Canal Co. in: a-1840, b-1829, c-1820, d-1850.

2.   The first underground railroad, or subway, was built in 1863 under: a-London, b-Chicago, c-Tokyo, d- New York City .

3.   The years of 1900 to 1925 were called: a-The golden age of railroads, b-The developmental period, c-The Pullman era, d-The diesel era.



As readers of RCSI’s previous editions of this newsletter are aware RCSI has been closely following both legislative and Court activity on Class Action Suits.  In this issue we provide the latest on the compromise version of the Class Action Fairness Act.   Fees in class action settlements based on coupons instead of cash would be based on the number of coupons actually redeemed by class members rather than a predetermined cash fee under compromise federal class-action reform legislation announced last week.   The compromise version of the Class Action Fairness Act was worked out shortly before the Senate recessed for Thanksgiving. The act would permit removing certain class actions in which the plaintiffs and defendants were from different states to federal court from state court, a change that supporters of the act claim is necessary to prevent so-called “forum-shopping.”   The measure came up before the Senate in late October, but supporters fell one vote short of the 60 needed to halt debate on the measure and move it toward a vote. During the next few weeks, supporters hammered out a compromise acceptable to three Democratic senators who had voted against closure but who had expressed willingness to craft a mutually acceptable bill.   The compromise would still allow plaintiffs who initiate interstate class actions to receive greater compensation than those members who join the class at a later time, according to a statement released by Senator Charles Schumer, D-N.Y. Sen. Schumer was one of the Democrats involved in the negotiations.   According to Senator Schumer, the compromise adjusts the proposed standard to be used for removing interstate class actions to federal court from state court. The compromise also makes clear that, under most circumstances, so-called “mass actions”-as Mississippi and West Virginia term class-action-like lawsuits-would be treated like interstate class actions if they had the characteristics of interstate class actions.   The compromise has not been put into legislative language and supporters are certain that the Senate will resume consideration of the measure in early 2004. 



The Senate has put off consideration of asbestos liability reform legislation until March 2004, and that decision is drawing a mixture of disappointment and hope from those who support a change in the way victims of asbestos-related disease are compensated.   The asbestos reform bill-the Fairness in Asbestos Injury Resolution Act, S. 1125-would replace the current litigation-based system for compensating victims of asbestos-related diseases with a no-fault national trust fund paid for by defendant companies in asbestos liability cases and their insurers.  But as amended, the bill faced strong opposition from Senate Democrats, who held that it would be inadequately funded to meet all claims, and from insurers, which argued they would face financial liabilities far in excess of what they initially agreed to bear.



Barber v. Union Pacific Railroad Co. , No. CIV-98-312 (St. Francis Co., Ark., Cir. Ct.)  This May 10, 2003 Arkansas verdict, where the plaintiff attorney presented spoliation issues to the jury, resulted in award of $30.1 million to a motorist-passenger injured in an accident at a railroad crossing. The verdict included $5.1 million in compensatory damages and $25 million in punitive damages against Union Pacific Railroad.  Chris Barber was a passenger in a garbage truck that was hit in the rear by a moving train as it was crossing the Union Pacific Railroad tracks, just outside of Goodwin , Arkansas .  Barber suffered broken ribs, a punctured lung and a fractured skull.  He sued Union Pacific and the train engineer, alleging negligence and willful and wanton conduct.  Plaintiffs’ attorney Robert L. Pottroff said the railroad tried to thwart the plaintiff’s case by withholding damaging evidence.


Do all the good you can, by all the means you can, in all the ways you can, in all the places you can, at all the times you can, to all the people you can, as long as every you can.  John Wesley

Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty.  John F. Kennedy Inaugural Address Washington, D.C. January 20, 1961

Don’t give up when you still have something to give.  Nothing is really over until the moment you stop trying.  Brian Dyson, Business executive

Don’t fun too fast through life.  You only have one.  Bo Jackson

Courage is doing what you’re afraid to do.  There can be no courage unless you are scared.  Eddie Rickenbacker

Where the willingness is great, the difficulties cannot be great. Niccolo Machiavelli

If you wouldn’t write it and sign it, don’t say it. Earl Wilson (1907-1987), Columnist

It is not the mountain we conquer but ourselves.  Sir Edmund Hillary                                                        

The debt of gratitude we owe our mother and father goes forward, not backward.  What we owe our parents is the bill presented to us by our children.  Nancy Friday


1.   b-1829, used to haul coal

2.   a-London

3.   a-The golden age of railroads.


Employee Alleged Injured on Old Handbrake Le­ver - Philadelphia Federal Court Denies Defense Motion for Summary Judgment. On May 9, 2000 , a dis­patcher ordered the plaintiff to move an observation car from the shop track to the storage track.  As plaintiff was attempting to release the handbrake on the observation car, the handbrake lever "kicked" back and struck plaintiff on the hip.  Plaintiff was allegedly knocked from the car and sustained injury.  Thereafter plaintiff filed suit, asserting claims under both FELA and the SAA.  After the district court granted summary judgment to the defense on the SAA claim, the railroad sought summary judgment on the FELA claim on grounds of contributory negligence.   The district court denied summary judgment on the FELA claim. It pointed to plaintiffs testimony that when he called the dispatcher and inquired as to how to operate the handbrake on the observation car [which dated from the early 1900’s], he was told to "try and find someone around who knows how to do it; if not, just do it; figure it out." Such testimony, the court found, raised an issue of comparative fault which required jury resolution. Thomas v. Reading , Blue Mountain and Northern Railroad Co., U.S. District Court, Eastern District of Pennsylvania, Case No. A01-5834.

Indiana Collision Suit Filed in Ohio .  Federal Court Denies Railroad's Motion to Transfer Case.  The plaintiff was injured when two Norfolk Southern trains collided in LaPorte , Indiana .  He filed suit to re­cover under FELA in federal court in Ohio .  The railroad moved to transfer venue based on convenience of the parties and the interests of justice. The district court concluded that under the cir­cumstances it appeared highly likely that the case would be tried primarily on the issue of damages.  The court found that the inconvenience to the railroad and its witnesses in defending in Ohio did not outweigh the inconvenience to plaintiff and his witnesses if the case were tried in Indiana . Krauter v. Norfolk Southern Rwy , U.S. District Court, Northern District of Ohio, Case No. 3:03-cv-7231. Attorney John C. Duffey, Lafayette , IN for railroad.

Derailment of Crane, FELA Injury Resulted. $975,000 Verdict, Philadelphia . The plaintiff, a welder for New Jersey Transit Rail Operations, was uploading a train near Philadelphia in August of 2001 when a crane derailed and dropped a piece of track which it was moving, resulting in injury to plaintiff’s leg.  Plaintiff also alleged injury to his back, shoulder and knee.  The jury returned a verdict in favor of plaintiff for $975,000. Mulea v. New Jersey Transit Rail Operations, Philadelphia County (PA) Common Pleas Court , Case No__________ .

Welder Claims to Suffer Progressive, Permanent Neuromuscular and Neurological Impairments as a Result of Cumula­tive Manganese Inhalation Poisoning.  Confidential Settlement, Kentucky .   The plaintiff alleged exposure to welding smoke every day during his employment, with the most significant exposure occurring in the Fall and Winter of 1976-1977 during construction of a precipitator unit.  Thomas Jackson v. CSXT, Greenup County (KY) Circuit Court, Case No. 96-CI-00175.  James E. Cleveland, III, Huddleston, Bolen, Beatty, Porter and Copeland, Ashland , KY for the defendant.

Driver Suffers Quadriplegic Injury in Auto/Train Accident Resulting in $3.75 Million Settlement - Georgia . Douglas Nix, 33 years old at the time of the accident, was driving his vehicle parallel to the defendant CSX tracks when he turned right onto a private road leading to his family's property, where he was struck by the train as he crossed the tracks. The impact ejected him from his vehicle, and he was rendered quadriplegic.  The distance from the turn to the tracks was approximately fifty feet.  The plaintiffs sought recovery of $500,000 in medical bills. This action resulted in a settlement of $3,750,000.  The Georgia Trial Reporter   Douglas Nix, Jr. and Tammy Nix v. CSX Transportation, Inc. and Donald W. Jewels, Fulton County (GA) District Court, Case No. LOO-CV-2650-CC.

Georgia Appeals Court Ruling Precludes a Common-Law Cause of Action for Failure to Maintain Right of Way.  In reversing the denial of the motions for summary judgment, the court found that the plaintiff had failed to prove, as required by the statute [OCGA §32-6-51 that the vegetation was “unauthorized”.  The plaintiff’s decedent was fatally injured when his vehicle collided with an Ogeechee Railway train.  In her suit plaintiff alleged that both the railroad and the town failed to maintain the railroad right of way free of overgrown shrubs that allegedly obstructed her husband's view of the oncoming train. After the trial court denied defense motions for summary judgment, the appeals court granted applications for interlocutory ap­peal.  According to the court, adoption of the Georgia Code of Public Transportation [OCGA §32-1-1 et seq] precluded a common-law cause of action for fail­ure to maintain the right of way since the statute governed the railroad's duty. Town of Register v. Fortner, Court of Appeals of Georgia , Case No. A03A0636 and Ogeechee Railway v. Fortner, No. A03A0637.  Attorney Matt Williams of Casey, Gilson & Williams represented the railroad.

BNSF Worker Falls From Ladder Resulting in Herniated Disc. $5.5 Million Verdict.  The plaintiff was washing windows at a railroad building on November 8, 1999 when the ladder on which he was standing gave way.  Plaintiff fell, sustaining an injury to his back and leg.  The jury found in favor of plaintiff for $5.5 million. Early v. BNSF, St. Louis City (MO) Circuit Court, Case No. 012-09389.

Conductor Jumped From Moving Train and Sustains Cervical Injury.  $975,000 Settlement in Missouri   According to The Jury Verdict Reporting Service the 32 year old plaintiff alleged that while he was working as an employee of the UP another employee negligently lined a switch that caused the train to head into a chemical plant lo­cated in East St. Louis , Illinois . The plaintiff claimed that all of the crew jumped from the train due to the impending danger, and he suffered a neck injury when he landed.  Scott Gray v. Union Pacific Railroad, St. Louis City (MO) Circuit Court, Case No. 012-09400.  Theodore J. Williams, Williams, Venker and Sanders, St. Louis , MO for the defendant.

Trainman Suffers Crush Injury to Hand.  A Florida Jury Finds in Favor of Railroad. On June 26, 1997 , the plaintiff observed two open doors on a trailer that sat on top of a railroad flat car.  He noticed that two other trailer doors were also open.  The supervisor ordered the plaintiff to pull the flat car with the vandalized trailer out of the train and place it on another track.  After that was done, the plaintiff and the supervisor learned that one of the mail bins had fallen from the flat car and was close to a track.  The supervisor decided to move a flatbed car so as to allow for clearance.  He instructed the plaintiff to observe the mail bin while the flat car was moved.  As the engine moved the flat car, a handbrake on the flat car contacted the mail bin and caused it to roll towards plaintiff.  The bin caught plaintiffs hand and caused a crush injury which required five surgeries. According to Florida Jury Verdict Reporter, the jury returned a defense verdict. Barlow v. Florida East Coast Railway, L.L.C., Palm Beach Co. (FL) Circuit Court, Case No. 00-4939 AF. Eric Leach and Nick Charek, Jacksonville , FL for defendant.

Louisiana Federal Court Grants Summary Judgment To Kansas City Southern in Fatal Injury of a Seventeen Year-Old Trespasser.  The plaintiff’s seventeen year-old son and two friends were social­izing on a railroad trestle bridge near Madison Parish, Louisiana when they heard an approaching train. The two friends were able to run to safety but the plaintiff’s son was struck and killed.  A lawsuit was filed and the railroad filed a motion for summary judgment. The District Court granted summary judgment to the railroad finding that a railroad owes no greater duty to a trespassing minor than to a trespassing adult.  The court also held that an engineer has no duty to stop immediately upon seeing someone on the tracks.  Instead, according to the court, an engineer must give warnings and attempt to stop if those warnings are not heeded.  Noting that there had never been a pedestrian incident on this bridge and that the crew had never seen persons congregating on the bridge, the court concluded that there was no genuine issue of fact as to whether a proper lookout was maintained. Davis v. The Kansas City Southern Railway Co., U.S. District Court, Western District of Louisi­ana , Case No. 2:02-CV-1026. Arthur R. Carmody, Shreveport , LA for railroad.

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) 967-1788.

 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?

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:  731-967-1788 or visit us on the Web at www.railway-claim-services.com

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