When we talk to the members at railroad 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 Hoey & Farina has 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 railroad 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 work 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.
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.
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.
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.
- 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 - "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 1-888-425-1212. 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.