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Railroad Injury Blog

The Importance Of Underinsured And Uninsured Motorist Coverage

Wednesday, July 06, 2016

Part of every railroaders daily existence is the process of deadheading from one work location to another. It is important to remember that under the Federal Employers Liability Act, the railroad is required to provide you with a reasonably safe place in which to work. This duty extends to the premises of third parties, including industry yards, hotels and any other place the railroad requires you to be in the furtherance of your work duties. Just like with most other cases, it is important that the railroad be made aware of any dangerous condition you may encounter anyplace you work. This can often make the difference between a successful case and one that is not.

Deadheading

In the context of deadheading, it is important to understand that the van company is considered an agent of the railroad. This means that legally, any negligence of the van or truck is considered to be the negligence of the railroad. Therefore, if the van driver violates a traffic rule or drives negligently, your FELA case would essentially proceed just as if the injury occurred on railroad property. This would also be true if there was some defect in the vehicle that caused or contributed to the accident. The lesson here is that if there is any aspect of the accident that was caused or contributed to by the van driver, it is important that you record that fact. For example, if the van driver was not paying attention due to the fact he appeared to be fatigued so he did not react as quickly as he could have, make sure that this fact is noted in the railroad injury report. That way, even if the main theory of the case is that another driver was negligent, the railroad will still be held in the case as a joint-tortfeasor; meaning that they would be required to pay any verdict in the case.

If You Are Injured In An Accident

However, what happens if the van driver was not negligent and you are injured in an accident? It is clear that you would be “covered” under the FELA, but since the railroad was not negligent, a FELA case would not be successful. Therefore, the only case you may have would be against the driver who caused the accident. What would happen if the van was stopped at a red light and was rear-ended by another vehicle? Since the van driver was not negligent, there would be no chance of a recovery under the FELA. Your only recovery would be against the other driver. That would be fine if the other driver has sufficient liability insurance limits, but what if the other driver only had minimum coverage?

It Could Happen Just Like This…

Consider this scenario. You are in a van that is rear-ended. You injure your neck and have to have surgery and miss two years from work, or maybe cannot ever return to work? The driver who caused the accident only has $20,000 in liability coverage? That means that even if you have lost wages of $250,000, you would receive $20,000 and that is all!

The Best Way To Protect Yourself

How can we avoid this outcome? The only way to protect yourself is to purchase Underinsured/Uninsured Motorist (UIM) coverage with high limits. I suggest that the limits be at least $1 million. UIM coverage applies when a motor vehicle accident occurs and the negligent driver does not have sufficient liability insurance limits to satisfy the damages you suffered as a result of the accident. The claim is then submitted to your UIM insurance company. If the case does not settle, a lawsuit can be filed just like any other personal injury case. In addition, your insurance rates cannot be increased if you pursue a UIM claim. Having sufficient UIM limits can be the difference between being completely compensated for your losses and losing everything you have worked for in your career.

When You Need Help

Please contact your Smart Transportation Division Designated Legal Counsel Matt Darby at 800-248-FELA or pmdarby@bsgfdlaw.com if you have any questions.

By Matt Darby

When Should An Injured Employee Give A Recorded Statement To The Railroad Claims Agent?

Wednesday, May 25, 2016

I am frequently asked the question of when an injured railroad employee should provide the Railroad’s Claims Agent with a recorded statement. The short answer is “when hell freezes over.”

The Real Purpose of a Recorded Statement

There is no advantage to an employee giving anyone from the Claims Department a recorded statement following an injury. The purpose of any recorded statement is merely to memorialize information that will be helpful to the Railroad in defending the case in court. Often, the Railroad’s Claims Agent will contact the employee and request a that a recorded statement be given following an injury. This is done under the guise of fact finding and information gathering. However, the real purpose of the recorded statement is to elicit information that can be used in court against the employee.

What You Say Can, and Will, Be Used Against You

I am blogging about this issue now because I have recently handled several cases in which recorded statements have severely hurt my clients’ cases. The Claims Agents are trained on the legal issues under the Federal Employers Liability Act (FELA). It is important to remember that in order to recover under the FELA, and employee must show that the Railroad was negligent or, stated differently, the Railroad failed to provide the injured employee with a reasonably safe place in which to work. At the time that a recorded statement is given, a full investigation obviously has not taken place. Information which may become available later will look fabricated if an employee denies facts that may become relevant later on after the case has been fully investigated. It is very damaging for a Jury to hear, in a railroad employees own words, information that contradicts what a subsequent investigation may reveal. The damage, in some cases, can be fatal.

The Claims Agent will also seek information that may help defend the case in other areas, such as information about prior injuries or pre-existing conditions which the Railroad may argue later are relevant to the issue of medical causation. In other words, the issue of whether or not the subject accident involving the injured employee was the cause of the damages alleged in a potential FELA claim.

So What IS an Injured Employee’s Obligation When Reporting an Injury?

The only obligation an injured railroad employee has is to complete the Railroad’s Injury Report. Those injury reports range from very detailed (ex. Those required by CSX Transportation), to very general (ex. Those required by Amtrak and others). The Injury Reports and the important sections thereof can be reviewed on my Legal App, which can be found by searching Matt Darby and Railroad in your smart phone’s App Store. Once that Injury Report is completed, the employee is under no obligation, legal or otherwise, to provide the Claims Department with a recorded statement (of any kind).

Why Sharing This Information Matters

Please help me get the word out by sharing this information with your fellow railroad workers. No one wants to be in the position of being injured on the Railroad. However, given the dangerous nature of the work, it is likely that at least some point during your career you may sustain an injury. This information could be the difference between a successful FELA Claim and one in which recovery may be limited.

By Matt Darby

Amtrak To Install Video Cameras In Locomotive Cabs

Wednesday, May 27, 2015

Amtrak said Tuesday it will install video cameras inside locomotive cabs to record the actions of train engineers, following a deadly derailment that occurred on May 12, 2015.

Watch Here

By Matt Darby

How Often Do Amtrak Trains Derail?

Thursday, May 14, 2015

The Washington Post issued an article about the rail agency’s history and what causes derailments. Read the article here.

By Matt Darby

NTSB Release Video Of Its Amtrak Derailment Investigation

Wednesday, May 13, 2015

Earlier today the National Transportation Safety Board (NTSB) released video concerning its investigation of the Philadelphia Amtrak derailment.

Watch it here.

By Matt Darby

NTSB Confirms That Derailed Amtrak Train Was Traveling More Than 100 MPH

Wednesday, May 13, 2015

The NTSB confirmed in a Tweet earlier today that the Amtrak train involved in yesterday’s derailment in Philadelphia was traveling more than 100 MPH. This was more than twice the speed permitted in the location where the derailment occurred.

By Matt Darby

No Positive Train Control In The Location Of The Amtrak Derailment

Wednesday, May 13, 2015

A report in the Philadelphia Inquirer indicated that Amtrak had not installed Positive Train Control in the location of yesterdays derailment.

A link to that report is here.

By Matt Darby

Reuters Reports That Paralyzed Passenger Has Sued Over Metro-North Crash

Wednesday, April 09, 2014

Reuters has reported that a 39 year old Metro-North passenger who was paralyzed as a result of the December 1, 2013 crash has sued for $100,000,000.00. Samuel Rivera, an employee of Metro-North, who was off-duty at the time of the incident, was left a quadriplegic. His doctors feel that his condition is permanent and it is unlikely that he will ever regain the ability to move his limbs. Rivera’s lawsuit is the seventh resulting from the crash. The Reuters article can be found here.

The Wall Street Journal reported about the first lawsuit filed in connection with the crash...read about it here.

By Matt Darby

FRA Launches Inspection Of Metro-North

Friday, December 13, 2013

The Federal Rail Administration (FRA) has been busy over the last couple of weeks. Last week, in the wake of the December 1st commuter rail tragedy in New York it announced an emergency order concerning Metro-North Commuter Rail’s speed compliance. Article here.

On Wednesday, it issued an industry-wide advisory regarding speed restrictions. Article here.

Yesterday, it announced that it will be performing a 60-day compressive safety assessment of Metro-North. The assessment has been named “Operation Deep Dive” and will begin on December 16, 2013. It will involve FRA technical and human factors experts that will review safety-critical procedures and processes at Metro-North. Once the assessment is completed, the FRA will issue a report with findings and recommendations. The FRA’s press release regarding Operation Deep Dive can be found here.

By Matt Darby

FRA Issues New Industry-Wide Advisory Concerning Speed Restrictions

Wednesday, December 11, 2013

Today the FRA (Federal Rail Administration) issued an industry-wide safety advisory concerning compliance with speed restrictions. This advisory came less than one week after the FRA issued an emergency order directed to the Metro-North Commuter Railroad (MNCW) requiring it to take steps to ensure its operators obey speed limits.

A link to the FRA’s press release regarding the advisory can be found here.

By Matt Darby

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