ON
TRACK WITH RAILWAY CLAIM SERVICES, Inc.
Volume
16 Issue
1
January 2009
RAILWAY
CLAIM SERVICES, INC.
Our 22nd Year of Service
Ø
BACKGROUND
CHECKS
Ø
U.S.
SUPREME COURT TO RE-VISIT PUNITIVIE DAMAGES
Ø
NTSB
REPORTS FATALITIES
ARE
DOWN, 2006 to 2007
Ø
A
30-YEAR-OLD LAWSUIT OVER $134 ENDS
Ø
PRE
-EMPTION
CHALLENGE – FAR REACHING IMPACT?
Ø
QUOTES
FROM HISTORY
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.
U.S.
SUPREME COURT TO RE-VISIT PUNITIVIE DAMAGES
On
December 3, 2008
U.S. Supreme Court Justice John Roberts indicated that the Court may use an
Oregon
case it has already reviewed twice to provide more guidance on when a punitive
damage award is so disproportionate to the underlying compensatory award that it
violates the Constitution's due process provision.
The chief justice’s comments came after the court heard oral arguments in Philip
Morris USA vs. Mayola Williams.
The case involves an
Oregon
court's award of $79.5 million in punitive damages to the widow of a longtime
smoker. The punitive award came
atop compensatory damages of less than $822,000, an amount later reduced by
state court to less than $522,000.
Philip
Morris appealed the case to the U.S. Supreme Court, which ruled in 2003 that the
Oregon Supreme Court should review the punitive award under standards it had set
in State Farm Mutual Automobile Insurance
Co. vs. Curtis Campbell et ux, in which it said punitive damages that
exceed single-digit multiples of compensatory damages are generally
unacceptable. The Oregon Supreme
Court upheld the punitive damages award, leading to another appeal and another
opinion from the U.S. Supreme Court telling the state court to review the award
in the light of due process protections.
The
Oregon Supreme Court, however, decided that it did not have to follow the
federal standard because Philip Morris had allegedly proposed a flawed jury
instruction at the original trial. By
doing so, Philip Morris forfeited its federal claim, the state high court ruled.
Philip
Morris again appealed to the Supreme Court, seeking review of both the ability
of
Oregon
to avoid the federal standard by applying a state procedural rule and whether
the punitive damage award was so excessive as to be unconstitutional. The high
court agreed only to review whether
Oregon
could trump a federal standard by applying the state jury instruction rule.
But
after nearly an hour of arguments on December 3, Chief Justice Roberts suggested
that the high court might be willing to address the question of excessiveness in
the punitive damage award as well as the state vs. federal standard question. To
do so, the parties would have to submit new briefs addressing that question,
with the high court deciding whether to review the issue later in its term.
NTSB
REPORTS FATALITIES
ARE
DOWN, 2006 to 2007
According
to preliminary figures released during the third quarter of 2008, overall
transportation fatalities in the
United States
fell 4 percent year over year from 2006 to 2007.
Overall,
there were 43,193 transportation fatalities recorded in 2007 versus 45,085 in
2006. Highway fatalities, the
segment that accounts for nearly 95 percent of all transportation deaths, also
dipped in 2007 from the previous year.
Within
that category, however, motorcycle fatalities were marked by a 6 percent
increase -- the single largest increase in any specific category across all the
included modes of transportation.
A
30-YEAR-OLD LAWSUIT OVER $134 ENDS
In
September 2008, after more than three decades, one of
Utah
's (and the nations’) longest-running civil lawsuits appears to be at an end.
The Utah Supreme Court ruled that Richard and Nancy Madsen, who made
advance payments to a mortgage company to cover taxes and insurance, are not
entitled to interest on that money.
The
unanimous decision reversed a judgment of $134 in interest for the Madsens, who
filed a class-action suit in 1975 against their mortgage company, Prudential
Federal Savings and Loan Association.
The
ruling also throws out a judgment of about $1 million awarded to 9,547 class
members, who claimed they were owed an average of $105 in interest on their
advance payments.
The
Madsens financed the 1964 purchase of their
Holladay
home by borrowing money from Prudential. Their contract required them to make
monthly payments for taxes and insurance into an account held by Prudential,
which paid no interest on the balance.
The
Madsens filed a class-action suit claiming unjust enrichment by Prudential and
seeking interest on their account. Prudential responded that its contract with
the Madsens contained no provision to pay them interest and that federal law
preempted a state law claim for payment.
For
more than 30 years, the case wound its way through the legal system, going from
state court to federal court and back again.
Except for several long-standing water-rights disputes dating back to the
1950s, it is the oldest active civil case in the
Utah
. Richard Madsen died in 2006.
Nancy Madsen became the lead plaintiff.
The
Utah Supreme Court's ruling says that Prudential had no obligation to pay
interest under federal regulations in effect when the Madsens took out their
loan. And when state law conflicts
with federal law, the federal law prevails, the high court said.
PRE
-EMPTION
CHALLENGE – FAR REACHING IMPACT?
Legal
experts are divided over whether a U.S. Supreme Court decision involving
cigarette advertising could reach beyond tobacco.
At issue in the case decided in December of 2008 (Altria
Group Inc. et al. vs. Good et al.) was whether a federal law that
regulates cigarette advertising pre-empted state anti-fraud statutes.
The U.S. Supreme Court held 5-4 that it does not.
The
case centered on the alleged promotion of "light" cigarettes as
allegedly less harmful than regular cigarettes under the Federal Cigarette
Labeling and Advertising Act. The act holds that no "requirement or
prohibition based on smoking and health shall be imposed under state law with
respect to the advertising or promotion of any cigarettes the packages of which
are labeled in conformity" with the law.
A
group of
Maine
residents sued Richmond, Virginia-based Altria, the parent company of Philip
Morris USA, alleging that the cigarette maker violated the Maine Unfair Trade
Practices Act by fraudulently advertising that light cigarettes delivered less
tar and nicotine than regular cigarettes. A U.S. District Court granted summary
judgment for Altria, holding that the federal law trumped the state statute. But
a three-judge panel of the 1st U.S. Circuit Court of Appeals in
Boston
overturned that decision in August 2007.
Altria
appealed to the Supreme Court, which sided with the
Maine
consumers. The majority noted that while the text of an express pre-emption
clause in a federal statute may be read more than one way, courts usually
"accept the reading that disfavors pre-emption." The court also said
that Federal Trade Commission decisions regarding statements of tar and nicotine
content in cigarettes do not implicitly pre-empt state deceptive trade practices
laws such as the
Maine
statute.
The
court's decision could encourage plaintiffs to file consumer fraud complaints in
cases that might otherwise be product liability actions, said Glenn Lammi, chief
counsel-legal studies division at the Washington Legal Foundation, which had
filed a brief in support of Altria.
"Depending
on how lower courts interpret and apply it in other situations, it could have a
broader impact beyond tobacco," in terms of federal pre-emption, said Mr.
Lammi. "The underlying facts
of the case involve situations where the federal government was involved as a
regulator. It permitted these claims by the tobacco company that cigarettes were
`light' and then the companies get sued for the fact that smokers smoke
harder."
But
the president of the Chicago-based Defense Research Institute said he doubted
the decision would have a great effect on many types of litigation.
See
the full story in Business Insurance at: http://www.businessinsurance.com/cgi-bin/article.pl?articleId=26837&a=a&bt=Chemical
 QUOTES
FROM HISTORY
It
ain't what you don't know that gets you into trouble. It's what you know for
sure that just ain't so.
Mark
Twain (November
30, 1835 – April 21, 1910)
If
you hold a cat by the tail you learn things you cannot learn any other way.
(Mark
Twain)
On
account of being a democracy and run by the people, we are the only nation in
the world that has to keep a government four years, no matter what it does.
Will
Rogers
(November
4,
1879
– August
15,
1935)
The
more you read and observe about this Politics thing, you got to admit that each
party is worse than the other. The one that's out always looks the best.
Will
Rogers
Be
thankful we're not getting all the government we're paying for. Will
Rogers
Diplomacy
is the art of saying “Nice doggie” until you can find a rock.
Will
Rogers
THE
84th ANNUAL SOUTHEASTERN CLAIMS ASSOCIATION CONFERENCE
The
84TH Annual Southeastern Claims Association Conference will be
hosted by PECO Energy Company, on June 16-19, 2009, at the
Francis
Marion
Hotel
, in
Charleston
,
South Carolina
. Further information and
registration can be found at the Southeastern Claims Association website:
http://southeasternclaims.us/.
This is always a great claims event, and the setting does not get any
better than historic
Charleston
,
South Carolina
. As the saying goes, “Come for
the conference, but stay for the many things
Charleston
has to offer.” You will not be
disappointed with either.
This
seminar is attended by claims professionals from all of the utilities, but
primarily railroad and public power companies.
Claims and legal presentations cover these fields.
The
hotel reservation deadline for the special in-season rate is May 15, 2009.
So, please make plans to attend this conference.
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. http://www.railway-claim-services.com/safety_first.htm
As
a part of our ongoing efforts to provide RCSI clients with information vital to
the safe and efficient operation, RCSI’s website contains the complete text of
the Emergency Response Guidebook: http://www.railway-claim-services.com/waycar.htm
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
Whole
Body Vibration Claim by BNSF Locomotive Engineer is not sustained by a Texas
Jury. The
plaintiff had worked for Burlington Northern as a locomotive engineer for over
thirty years. In a lawsuit brought
by the plaintiff, she claimed that cumulative trauma as a locomotive engineer
had resulted in a herniated disc in the cervical spine, which would require
surgery in the future. She also
asserted that the injury would necessitated that she retire several years
earlier than anticipated. She
claimed that bad locomotive seats, bad railroad tracks, and bad suspension on
railroad equipment caused the condition. BNSF
argued that the levels of whole body vibration were not dangerous and that the
ride plaintiff experienced was reasonably safe.
BNSF also disputed causation, contending that plaintiff’s physical
conditions resulted from an age-related degenerative condition and not railroad
employment. Following a two week
trial, the jury deliberated twenty-five minutes before returning a defense
verdict. Marie
Survant v. BNSF Railway Co., Hardin
C1. (TX) 356th District Court No.44814. Gilbert T. Adams, Beaumont, TX for
plaintiff.
Track
Conditions, Inadequate Shock Absorbers and Worn Pads Resulted in Cumulative
Trauma Injuries claim by locomotive engineer results in Texas Verdict.
The plaintiff claimed that he began his employment with BNSF in 1997, and
in 1998 he began to experience severe back pain. A
herniated disc at L5-Sl was diagnosed and surgery was undertaken.
He then claimed that he experienced pain in the ribs in 2003, and then
multiple disc herniations, including one at T11-12, which required additional
surgeries, to include a thoracic fusion. The
locomotive engineer plaintiff also claimed that in 2003 severe degenerative disc
disease and cervical spondylosis were also diagnosed, and in 2004 he underwent
bilateral hip replacement. In his
law suit he plaintiff alleged that the railroad failed to furnish him with a
reasonably safe place in which to work, failed to provide safe equipment, failed
to maintain its track and equipment and violated the Locomotive Inspection Act
by allowing excessive lateral and vertical motion and vibration in the
locomotive cabin. BNSF denied
liability. After a six-day trial,
the jury returned a verdict in favor of plaintiff for $600,000.
Homer
“Gene” Heath v. Burlington Northern Santa Fe Railway Co., Potter Co. (TX)
47th District Court No. 91,285-A
Whole
Body Vibration and Poor Seating Claim by BNSF Locomotive Engineer Results in
Kansas
Verdict. The
plaintiff, now age fifty-eight, worked for defendant as a locomotive engineer
before retiring with a disability after thirty-four years.
In his suit the plaintiff asserted that early retirement was necessitated
by injury due to seats which were not ergonomically appropriate so that whole
body vibration resulted. BNSF
denied liability causation and damages. The
jury returned a verdict in favor of plaintiff for $1,769,812.
Gilliand
v. BNSF Railway Co., Wyandotte Co. (KS) District Court No. 07CV1066.
Whole
Body Vibration Claim by BNSF Locomotive Engineer Results in
Texas
Verdict. The
plaintiff retired from ATSF in 2004 with thirty one years of service.
Thereafter he filed suit and alleged that the railroad was negligent,
alleging , the locomotives on which he rode were rough riding and exposed him to
whole body vibrations. In his
complaint he alleged that the seats provided were insufficient for the railroad
environment, which resulted in degenerative changes in the low back over the
course of his career. BNSF denied
liability, taking the position that there was nothing wrong with its seats or
its engines. BNSF claimed that any
back injuries were the result of degenerative disc disease brought on by age and
genetics. Alternatively, BNSF
asserted that plaintiffs smoking habit and failure to follow safety rules
contributed to his back problems. The
jury returned a verdict in favor of
the plaintiff for $1.204 million. Robert
A. Cook v. BNSF Railway Co., Hardin Co. (TX) 356th District Court No. 43,920.
Whole
Body Vibration Claim by BNSF Brakeman and Locomotive Engineer Results in
Montana
Settlement. According
to the complaint, in 2007, after twenty eight years of service, the
plaintiff became occupationally disabled due to a spinal problem.
The plaintiff asserted claims under FELA, the Locomotive Inspection Act,
and the Safety Appliance Act. The plaintiff claimed that over the course of his
career his spine was subjected to the cumulative effects of shocks, jolts,
vibration, and excess lateral and vertical movement as the result of inadequate,
defective and negligently maintained locomotives, including cab seats, and
tracks and roadbeds. BNSF denied
liability and claimed that there was no evidence of negligence.
BNSF also claimed that plaintiff failed to exercise due care for his own
safety. BNSF also asserted that the
plaintiff had suffered from a pre-existing condition.
The case settled for a confidential sum on the third day of trial.
Randal
l
Barrett v.
Burlington
Northern Santa Fe Railway, Yellowstone
Co. (MT) District Court No. DVO6-646.
#########################################################
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.
| 