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Straight
Track #270
When we talk to the members at union meetings there is
one question that is asked on a regular basis. "Should I ride in a motor
vehicle driven by one of my fellow employees or a company official?" The
answer to that question hasn't changed over the years, which makes it
apparent that the information is just not getting out to everyone. So,
even though we've written and talked about this before, we'll review
this subject again. And please, feel free to make copies of this article
to leave in places for or to hand to your fellow railroad employees who
aren't able to attend union meetings or don't have email.
QUESTIONS LEAD TO MORE QUESTIONS
The initial motor vehicle question is always followed by more questions.
"Should I ever be the driver?" "Am I covered under the FELA?"
Telling you what the laws is and then letting you apply it to the facts
is probably the easiest way for us to give this advice. This time, at
the suggestion of a member who has heard us speak many times and read
what we have previously written, we are going to give you specific fact
situations then tell you what the answer is. Hopefully the information
is more understandable presented in this format.
DEADHEADING ISN'T DEAD BANG LIABILITY
First, let's get one common misconception out of the way. There seems to
be a general belief amongst railroaders that if you are deadheading
under orders you are covered under the FELA no matter what the
circumstances of your injury are. This is not so! Just as with all other
FELA injuries, the law requires that railroad negligence was in whole or
in part responsible for causing your injury. Keep this in mind as you
read on.
LICENSED COMMERCIAL CARRIERS ON THEIR WAY OUT
With the railroads' more frequent use of "Utility" men to provide the
taxi service which was previously contracted to licensed commercial
carriers, knowing the answers to these questions is even more timely.
1) Can the railroad order you to drive if you are working a Uman
position? The answer – YES, unless the collective bargaining agreement (CBA)
specifically says that the railroad can not order you to do this. We are
unaware, however, of any CBA where the railroad has negotiated away its
right to do this.
2) Can the railroad force you to drive you own car, on or off the
property, to deliver or pick up a crew? The answer – PROBABLY NOT. Even
so, you shouldn't do this anyway unless your vehicle is in tip-top shape
and you have contacted your insurance agent to be sure that you are
covered for this activity and have adequate coverage. Under all other
circumstances, tell the railroad that your vehicle is not safe to haul
passengers and that your insurance policy does not cover use as a taxi.
The reason for this is kind of obvious. If you run off the road due to a
mechanical defect or are the cause of a collision, either of which
results in injuries to your passengers, they can sue you for your
negligence. Sure, they will be able to bring a claim and suit against
the railroad under the FELA for their injuries, but the railroad could
bring a third party suit against you for indemnity. That being said, if
you are still really determined to provide taxi service for the
railroad, look into what is called an "umbrella" policy and be sure it
states that it covers the type of service you are providing and has high
dollar limits, a couple of million or so.
3) What if the railroad provides you with a company vehicle to drive
around? Pretty much the same result liability wise, except that the
railroad is responsible for the mechanical defects and the part they
played in causing the wreck and injuries. However, if the defect is open
and obvious, like bald tires, and you skid off the road into a tree, you
could still be found at fault along with the railroad. So, refuse to
drive a defective vehicle unless you are ordered to drive it, and then
be sure to write up every defective condition you can find and turn it
in to the railroad before you drive it. Make sure your union rep has a
copy, too.
4) What are the potential liabilities if you are a passenger in a
vehicle being driven by a fellow employee? You are protected under the
FELA from the negligent acts of whoever is driving the vehicle, be that
a supervisor or a fellow contract employee. They are "agents" of the
railroad under the law. The biggest risk here is if the negligence of
someone not connected with the railroad is the sole cause of your
injuries. For example, the driver of another vehicle runs a red light or
crosses the centerline and hits the vehicle in which you are riding.
Here, your remedy is to collect damages from that other driver who was
negligent. Be sure you have plenty of uninsured and underinsured
coverage on your own policy to protect you if that other driver doesn't
have insurance or has insufficient insurance.
OFF TRACK VEHICLE BENEFITS
One final thought: When you are riding in an Off Track Vehicle there is
a separate agreement that most railroads have adopted. For the most part
it covers catastrophic injuries, but there are other provisions as well.
See Straight Track issue #255 entitled "Off Track Vehicle Benefits" for
a review of these benefits. The provisions of this agreement are
contractual and have no bearing on what we have said about FELA
liability.
MORE QUESTIONS / MORE ANSWERS
The forgoing should cover most situations you will face. If we have
missed something or there is a particular circumstance on your railroad,
please let us know by calling Hoey & Farina at 888-425-1212. We will
attempt to address your specific issue. And, if it is something of
general interest, we will share that analysis in another issue of
Straight Track.
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