In the last issue of The Crow Report we addressed the topic of personal automobile insurance. In that article, it was recommended that readers examine their current automobile insurance coverage and talk to their insurance agents about providing adequate coverage. In particular, it was recommended that readers focus their examination on that portion of their policy that offers "Uninsured Motorist" (UM) protection. UM is an extremely important coverage and can be a person's only protection when injured by another driver with little or no insurance coverage.
Since that time, many of our railroad union brothers and sisters have asked what happens in the event that they are injured while being transported during the course of employment. This question has been raised many times over the years and our response has always been the same. BEWARE!
While the Federal Employers' Liability Act (F.E.L.A.) governs the compensation of injured workers on virtually all operating railroads in the United States, there are certain circumstances when the protection afforded by the F.E.L.A. may not apply. This is especially true in circumstances where employees are injured while being transported in company-owned, noncompany owned or personal automobiles of others. This is a fairly common practice and in most cases offers a quick and economical means of moving people from one place to another. However, employees should be aware that if they are involved in an accident while doing so, they may not be able to receive compensation for injuries sustained.
Several recent cases handled by other F.E.L.A. attorneys illustrate the danger to employees that assume they are covered by the F.E.L.A. when being transported.
Case 1: Richard L. Chapman v. Union Pacific Railroad, Supreme Court of Nebraska (1991).
Summary: Mr. Chapman was injured while driving a company vehicle from Omaha, Nebraska to Council Bluffs, Iowa when the vehicle was struck by an uninsured motorist. Mr. Chapman filed suit under the F.E.L.A. claiming that the Union Pacific Railroad was negligent by failing to provide uninsured and underinsured insurance and failing to inform the plaintiff that he was not covered by any type of uninsured or underinsured coverage.
Result: The court found that by the statutory law of Iowa and Nebraska, there was no requirement that a vehicle operated within either state be covered by protection against uninsured and underinsured motorists. Therefore, Union Pacific was under no statutory duty to provide such coverage. Additionally, Mr. Chapman did not allege that he would have, or could have, obtained such coverage if he had been informed by the railroad of non-coverage.
Case 2: Allen Dawson v. Elgin, Joliet & Eastern Railway Co., Appellate Court of Illinois (1994).
Summary: Mr. Dawson was injured in 1991 while driving a company vehicle that was involved in a collision with another vehicle. The policy limit of the other driver was tendered to Mr. Dawson but is was insufficient to cover damages. Mr. Dawson filed suit under the F.E.L.A. claiming that the Elgin, Joliet & Eastern Railway Co. was negligent by failing to advise him of the lack of uninsured or underinsured coverage on the company car.
Result: The court said "neither F.E.L.A., nor any other federal statute or decision requires railroad employers to notify their employees about the lack of uninsured or underinsured coverage on the company car"... Moreover, we do not believe it a breach of duty when an employer fails to carry such insurance. ... Finally, we fail to see how the defendant's failure to advise plaintiff of the lack of uninsurance/underinsurance played any part in causing the plaintiff's injury."
Case 3: Gene R. Lewis v. Norfolk and Western Railway Company, Appellate Court of Illinois (1995).
Summary: Mr. Lewis's accident occurred in 1989 after driving some other railroad employees to the railroad's ramp in Venice, Illinois. Mr. Lewis was driving a company owned vehicle back to the railroad yard when the vehicle was struck by an at-fault vehicle. Mr. Lewis filed a complaint under the F.E.L.A. claiming that Norfolk and Western Railway was negligent because it did not provide him with a safe place to work. In particular, the company failed to notify Mr. Lewis of the lack of uninsured and underinsured motorist coverage on the company owned vehicle. At the time of the accident, the company maintained a $25,000 policy.
Result: The court decided that, in order for the plaintiff to succeed in an action under the F.E.L.A., the Norfolk and Western Railway must be at least slightly negligent and that this negligence resulted in the plaintiff's injuries. It was determined that the other driver was 100% negligent and the railroad was 0% negligent. Therefore, the railroad was not held liable under the F.E.L.A..
In addition, even though the railroad was under no obligation to maintain uninsured or underinsured motorist coverage, it did so in this case and was not liable for failing to provide additional insurance or to notify Mr. Lewis of the lack of coverage.
Case 4: John A. Graves v. Burlington Northern Railroad, U.S. District Court for the Eastern District of Washington (July 1997).
Summary: Mr. Graves was employed as a clerk for the Burlington Northern Railroad. His duties included regularly driving a train crew from Spokane to Pasco, Washington. In 1994 he was injured when the passenger van he was driving was struck by an intoxicated uninsured motorist.
The plaintiff filed suit under the Federal Employers' Liability Act., claiming that Burlington Northern Railroad was negligent by not maintaining uninsured and underinsured motorist coverage for company vehicles and this negligence caused Mr. Graves to suffer damages as a result of the accident.
Result: The court granted a summary judgment in favor of the defendant. The court ruled that, contrary to the plaintiff's assertion, the F.E.L.A. does not support the plaintiff's liberal interpretation of the act. The F.E.L.A. was enacted to protect railroad workers from the "inherent" hazards in working for the railroads. The circumstances surrounding the plaintiff's injuries were not the result of the inherent hazards present in railroading. The plaintiff could have sustained the same type of injuries if employed in another profession.
The court found that, because the accident and the injuries were solely caused by the intoxicated driver, the lack of insurance on the part of the defendant was not a cause of the accident. In addition, under Washington state law, Burlington Northern was not required to provide such insurance. The court said that:
- "Essentially, plaintiff is asking that this court create a duty under the F.E.L.A. requiring railroads to provide uninsured and underinsured motorist coverage. Such a duty is not supported by statute, caselaw, or the purpose of the FELA."
Case 5: David Servais, Robert Murray and Gordon Flood v. The Soo Line Railroad Co., U.S. District Court for the District of Minnesota (August 1997).
Summary: After the plaintiffs' shifts ended midway between two yards, they were transported by a local taxicab company which had been contracted for such services. Their cab was struck by an intoxicated driver. The cab had underinsured motorist coverage which was insufficient to cover the workers' injuries. The three plaintiffs filed suit under the Federal Employers' Liability Act claiming The Soo Line Railroad Co. was negligent by not providing a "safe place to work" or adequate automobile insurance coverage.
Result: The court agreed with the above cases and found that "the FELA does not impose a duty upon railroads to obtain adequate underinsured motorist coverage or to warn employees about such levels."
It also found that the three plaintiffs' expenses resulted from the accident not the level of underinsured motorist coverage carried by The Soo Line.
A key component of employee protection under the F.E.L.A. is demonstration of cause and negligence. In all of these cases, plaintiffs could not show that the railroad defendant's lack of insurance "caused" injuries or that the railroad defendant's negligence caused or contributed to the automobile accidents that resulted in plaintiff injuries. Therefore, plaintiffs were forced to look to the third party's insurance policies for coverage. In all cases, the third party had very little or no insurance coverage. Thus, these railroad employees had to look to their own pockets or the insurance policies of the third parties to obtain compensation for their injuries.
The importance of this issue has not gone unnoticed by union officials. In a recent letter from Clarence Monin, President BLE to all U.S. BLE General Chairmen, Mr. Monin asked that each General Chairman request an accounting of the types of insurance coverage maintained by designated carrier representatives. In particular their uninsured and underinsured motorist coverage. The letter was sent in response to a CP Rail engineer who was permanently disabled while deadheading. The taxi service used to transport the engineer carried a minimal amount of insurance coverage leaving the engineer little recourse for damages.
In what BLE President Monin called a "serious issue" he hopes contacting transportation companies will increase insurance coverage or risk losing their contracts with the railroads.
In the meantime, how can railroad employees adequately protect themselves in case they are injured in this type of accident? The first rule of thumb is to assume that neither the transportation carrier nor the other driver has insurance and plan accordingly. Examine your current automobile insurance and ask your agent whether you are covered by your own insurance while being transported or driving your own car for business purposes. While The Crow Law Firm is not an insurance agent and does not benefit from the premiums paid to insurance companies, we can recommend that you contact your provider and examine your options.
The following are most important types of automobile insurance coverage to be considered. It is recommended you review your current coverage with your agent and consider the highest available limits for each.
- Uninsured Motorist (UM): In some of the above cases railroad employees were injured by a third party who did not have automobile insurance. One of the ways these railroaders might have protected themselves would have been through the purchase of Uninsured Motorist coverage as part of their own insurance package.* With sufficient UM coverage, they stand a better chance of being compensated for their damages if the other driver is proven to be liable.
- Underinsured Motorist (UIM): Typically an additional benefit of UM coverage, Underinsured Motorist coverage covers damages when the other party has some insurance but not enough to cover the total amount of your damages.*
- Liability Insurance: This is your protection in the event that you are at fault in an accident. It compensates others and protects your personal assets from claims. This type of coverage is of particular importance to railroad employees who use their own automobiles to transport other railroad employees. Be sure to ask your agent whether special coverage is required when you use your personal automobile for company business. Typically UM and UIM coverage is not available in excess of the liability limits of your policy.
- Medical Payments: This coverage is available to pay for or supplement other medical insurance. Similar insurance may be available for wage loss.
The purpose of this article is not to tell workers that driving in company vehicles is unsafe. It is however a recommendation that railroad employees adequately protect themselves in case of an accident. There are many types of automobile insurance to consider. Your insurance agent should be able to explain the types of coverage available. In most cases, the cost of additional coverage is small but the protection afforded is enormous.*
Remember, there are circumstances when a F.E.L.A. claim may arise due to driver negligence but there are far too many other times when the employee's exposure is much too great.
*This assumes that the coverage would extend to work-related activities. We recommend that you contact your agent regarding this issue.