Amtrak 91 - CSX Collision Cayce, SC - 2/4/18

[Gilbert B Norman]

I must say it is interesting how provisions of a bilateral agreement that by its nature is exempt from public disclosure, i.e. "sealed", is all over the media.

Yes, the Amended Agreements in which Amtrak and most roads entered into starting during 1973, do provide for self-indemnification, or "no-fault". Those Agreements replaced those in force on A-Day where the railroad assumed all liability (paid for of course with a substantial add-on).

Those provisions can be overridden if an injured party can establish "Gross Negligence", such as Messrs. Lurker, Meehan, and MMI, all immediately note, was established at Chase. Obviously the injured parties, Amtrak believing itself to be one of such, will seek a Gross Negligence ruling (and no doubt other parties will seek its overturn on appeal and here beginneth the legal merry go round with the taximeters a tickin').

But Step #1 is establishing fault.

[JimBoylan]

ConRail's 1st position about Chase or Gunpow, Md. in 1987, before they stopped trying the cases in the newspapers, was that if any suit in court by a passenger got money from ConRail, then Amtrak would have to reimburse ConRail under the No Fault agreement.

[BandA]

So Amtrak has a liability cap, but private railroads don't. And the indemnity agreement doesn't have a cap. So if Amtrak's liability is unlimited when it isn't their fault?

[JimBoylan]

I guess that if a railroad sued Amtrak for reimbursement under a No Fault Agreement, it would join the line with the other claimants to see if the Liability Cap is reached. If prorating is required, then future bad blood and poor relations might follow. I'm sure that if the Liability Cap is reached with this crash, someone will look for deep pockets elsewhere, like at CSX.

[BandA]

To be crass, only two dead, so whether they hit the cap depends on how bad the injuries are. If the cap applies

[Backshophoss]

Figure on CSX getting served a few lawsuits after the NTSB make their reports public on this wreck and the derailments near Cumberland WVa.
Whatever wholesale changes and "cost cutting" that EHH started,will come back and bite the corporation.

"No Fault" does not mean CSX is off the hook.

[Tommy Meehan]

CSX is already being sued by the widow of the Amtrak conductor, Michael Cella, who lost his life in the collision.

Christine Cella, whose husband, Michael Cella, died along with 54-year-old engineer Michael Kempf of Savannah, Ga., also sued CSX Transportation as well as Amtrak for negligence in a 14-page complaint filed Thursday, according to attorney Howard Spier.

A CSX spokeswoman said its policy is “not to comment on litigation,” while Amtrak spokesman Marc Magliari said his company “will respond to the court regarding this filing.” Link

I'm not a lawyer but if there is a no-liability agreement written into the service contract ('no fault') then CSX will probably be able to get the suit dismissed. Or at least get itself dismissed as a co-defendant. As for Amtrak, my impression is, in most of these incidents where there was obvious negligence and someone -- an employee, a passenger, a bystander -- was killed or seriously injured, Amtrak does not normally contest the claim and usually settles out of court. I can't remember many of these cases going to trial.

[aczlan0]

As for Amtrak, my impression is, in most of these incidents where there was obvious negligence and someone -- an employee, a passenger, a bystander -- was killed or seriously injured, Amtrak does not normally contest the claim and usually settles out of court. I can't remember many of these cases going to trial.

It makes the lawyers happier to not go before a jury who might feel sorry for the person (or the heirs of the person) who was killed or seriously injured and see how much money they can award them...

Aaron Z

[Gilbert B Norman]

Mr. Meehan, my read (not an attorney, but a retired CPA who during my 1970-81 railroad career worked with the Amtrak Agreement) is that CSX can presently defend against a suit filed by the survivors of a fatally injured Amtrak employee. They can also defend against an Amtrak passenger injured resulting from the incident, as well as Amtrak themselves for damaged equipment.

Now any injured party will seek to have a ruling of Gross Negligence applied to their cases. In which case, drawing upon my one-time first hand knowledge of such, it would become "all bets off" on any self-indemnification between the parties.

[JimBoylan]

I'm not a lawyer but if there is a no-liability agreement written into the service contract ('no fault') then CSX will probably be able to get the suit dismissed. Or at least get itself dismissed as a co-defendant.

My own opinion, if the Conductor is not part of that Agreement between Amtrak and CSX, he won't be bound by it. CSX may be free to try to enforce such an Agreement against Amtrak, if CSX looses a suit by the Conductor's heirs. Since the Conductor was covered by the Federal Employees' Liability Act, instead of Workers' Compensation, his heirs must sue to force Amtrak, his employer, to pay. Amtrak could claim that the damages were caused by someone else!

[abaduck]

I'm not a lawyer but if there is a no-liability agreement written into the service contract ('no fault') then CSX will probably be able to get the suit dismissed. Or at least get itself dismissed as a co-defendant. As for Amtrak, my impression is, in most of these incidents where there was obvious negligence and someone -- an employee, a passenger, a bystander -- was killed or seriously injured, Amtrak does not normally contest the claim and usually settles out of court. I can't remember many of these cases going to trial.

I'm not a lawyer either but that agreement is a private one between Amtrak and CSX, and it only affects what Amtrak and CSX can do to each other. Other parties - people who have been injured or killed and their families - are not party to that agreement. They didn't see it or sign it. If - IF - CSX is on the hook. due to negligence by their employees or defects in their systems, they can't wiggle off it like that.

[David Benton]

that is correct , and how it should be. Nobody should be immune from legal consequences of negligence.
Its a bit like trucking firms paying the speeding fine of drivers , because they want them to push the limits to make delivery . The driver is still responsible for the offence and consequences , though part of his defense could be the boss told him to speed.

[GandyDancer1]

At the end of the day Someone is going to settle with these injured people. And rightfully so.

[Tommy Meehan]

I'm basing my opinion on news articles I've recently read and I think one of the most informative was on Fox News dot com. Link to Fox

The AP was unable to find an instance where the railroad has brought such a claim against a freight railroad since the 1987 Chase, Md., disaster. The AP also asked Amtrak, CSX and the Association of American Railroads to identify any example within the last decade of a railroad contributing to a settlement or judgment in a passenger rail accident that occurred on its track. All entities declined to provide such an example.

Even in court cases where establishing gross negligence by a freight railroad is possible, said Bob Potrroff, [a rail injury attorney who has sued CSX on behalf of an injured passenger from the Cayce crash], he has never seen any indication that the railroad and Amtrak are at odds. "You'll frequently see Amtrak hire the same lawyers the freight railroads use," he said.

Ron Goldman, a California plaintiff attorney who has also represented passenger rail accident victims, agreed. While Goldman's sole duty is to get the best possible settlement for his client, he said he'd long been curious about whether it was Amtrak or freight railroads which ended up paying for settlements and judgments. "The question of how they share that liability is cloaked in secrecy," he said, adding: "The money is coming from Amtrak when our clients get the check."

Three things, first CSX can be sued over injuries in the Cayce collision but it sounds like they're not going to pay the damages, anyway, Amtrak is. Second, the private agreement is in the form of a contract and that's a legal document. If the contract assigns all liability for Amtrak employees and passengers injured on an Amtrak train -- regardless of who is at fault ('no fault') -- that is a legally enforceable document. I would think in many cases a railroad like CSX can cite that contract as a reason why they're not liable and should not be a co-defendant, but I could be wrong. Third, I'm sure the great majority of these cases are settled out of court. I would expect Amtrak to admit that the accident occurred as the result of negligence, yes on the part of a CSX employee, but during an operation for which Amtrak has full responsibility for any injuries, deaths or damages. And just go on to negotiate a settlement with the different parties, such as Michael Cella's widow.

[mtuandrew]

Would there be a difference in who pays compensatory vs punitive damages, as assigned by the court? Seems like Amtrak would automatically per agreement have to pay compensatory, but the punitive ought to be proportionally paid by the ones who actually made the mistakes.