Ed,

I understand your wishing to head off a flame war, but the subject is not off topic, as what happened here is causing the demise of similar groups of interest to ours all over the country.

For example, in the Live Steam (miniature railroading) community, a Live Steam club in Kansas City is disbanding due to a horse getting away on an adjacent public park bridal path, and kicking some folks on the train as the horse jumped over it. The insurance company took over the claim, settled, and cancelled the insurrance. Today there is only ONE insurrer of Live Steam clubs in Public Parks, and if you lose them, you are out of business.

I am very familiar with a Live Steam club on the east coast. Last year the only other insurrer of clubs in public parks quit, and the remaining firm (monopoly) raised one years insurrance from $1400 to $4200. This year's renewal is $5800. This club has had a clean record for over 25 years. The free will donation box does not even begin to cover the bill.

There are several tourist railroads who are either willingly or unwillingly having adjacent trails built next to their right of ways. The walkers-joggers- bikers will not have insurrance, but the railroad will. And anyone who unfortunately is injured by the train will not even have trespassed to come within five feet from the ends of the ties.

Tort reform and insurrance availability are most definitely subjects for discussion ; although we will be preaching to the choir here. Perhaps it is an issue for us to bring up individually with our elected representatives.

Steve Zuiderveen

Let me also redirect attention for a moment to the Interchange terms of service:

"deciding when continued discussion of a subject is no longer constructive, shall be within the sole discretion of the moderators."

Ed has concluded that continuing discussion of the subject at this time, in this tone, is no longer constructive (a judgement in which I happen to concur). That is his job. As most longtime readers of this board also know, the moderators and management frown on collective accusations against entire classes and professions of people (no matter how sincerely held or widely shared the view) and readers can safely assume that such threads will always be unwelcome here.

Let it lie for a while, and if you think there are issues that we can discuss in a courteous and considerate way, without stigmatizing entire professions or classes of people, try reintroducing the topic.

With all due respect, I think that "Superheater's" post was not going to lead to a flame war because frankly that is not the "style" of 99.9% of the people who post here.

Frankly the insurance cost issue and the one single factor that drives the cost; our civil justice system has the immediate effect on every facet of what we do. Even static restoration is sometimes funded by things that move, and every venue that is open to the public is a potential "target". Young people entering this advocation just are not aware how important it is to manage risks and the effect that the "system" has on re-allocating cash that can go for the actual preservation effort itself. Only by being aware of the "horror" stories can those of us who are not intimately aware of the financial aspects of the movement start to appreciate the bigger picture. The issue of the verdict in Scranton has impacted us all, not for the better, but for the worse.

Just as an aside the costs insurance in the the operating of our E units is the most significant component of the excursion costs. Consider that the locomotives have run for the benefit for the NRHS, the L&RHS, several NRHS chapters, as well as several RR museums and have raised significant amounts of money for most of those entities, what happens when the costs of insurance get so high that Eric and I say, "forget it"!

An out of control plantiff's bar, judges who are not accountable and re-write the law to suit their own view of the world, and a system that feeds on itelf and prays on the public to sustain the legal profession will no doubt sooner than later diminish what we all do, no matter if it is moving or if it is static.

The most interesting part of Superheater's post was the epilouge in which he describes what happened to the families after it was all over. The money did not bring the kids back.....it did not bring comfort to the grieving parents......and it did not punish the wrong doers or the entities the judge, in his warped judgement, made the award against. The claim was paid by the insurance company and every one of us who is a member of any organization that carries railroad related liability insurance wound up being punished the following year.....and every year since though increased premiums that soaked up money that could have been spent for paint, wood, steel, glass, or heavy metal.

It is best to discuss it here so those who ordinarilly never come into contact with that aspect of restoration (money) have a feel of the effect of a system driven by greed, running amuck, and transfering our assets to this country's most priviledged class.

Yes, there probably are good judges and decent lawyers but the inertia of the current system is something that all of us must be made aware of if restoration and preservation as well as the operation of our artifacts is to be able to continue.

The whole insurance issue is very complex and has not a few major issues making the cost of insurance so high. In no particular order, issues include:

The Jury must agree with the plaintiff. -- In our legal system, the lawyers can suggest, but it boils down to a group of people who are not trained in legal matters agree or disagree with the case presented. In the couple times I've served jury duty, I've been struck by the appearance that most of my fellow members of the jury were **NOT** working people. The jury pool seems to be disproportionately composed of people who can take the time to attend a week long trial. I think this is a major issue is that the juries are not being responsible to society.

Pain and Suffering judgements -- This is usually the major cost of a judgement and juries give this money like candy, see the point above.

Deep Pocket Laws - even if the RR was only 1% at fault, if no other involved party has the $$$ the courts will force the RR to pay the entire judgement.

Loss of capital by the insurance industry. The insurance companies invest the money collected from their insured, much of it was/is in the stock market. Up until 2002 or so, the market was gaining 12 to 15 percent per year which meant that they could trim their premiums by that much or more. When the bubble burst and the stocks lost 70% of their value, the insurance companies' reserves were depleted by that loss of value. So this resulted in a double whammy, premiums had to increased not only to cover expected losses but also to replenish the insurance company's reserves.

A series of natural disasters (hurricanes, tornadoes and earthquakes) in the last four or five years that have forced many insurance companies to reach into their already depleted reserves. Remember that the underlying assumption of insurance is that everybody pays for risk coverage regardless of the type of risk, but very few are expected to collect in a given period. When that assumption breaks down, the insurance company goes broke.

Always remember that insurance companies exist to make a profit for their stock holders. So when the losses exceed income over a period of time, rates have to go up, and up and up. And insurance company boards have to sometimes decide that some risks are just too great to underwrite. Insurance is not a public good, but a business that is highly regulated. There is no legal requirement to force a insurance company as a publicly held company to accept risks that are not in the best interest of the insurance company. Not only are the RRs suffering, but health care is getting rapidly to the point that it can't get insurance either. In both of these cases, individuals and companies have to decide how much uninsured risk they are willing to take. Some of these issues have surfaced on the Interchange when discussing the amount of insurance that the Class I's are requiring for excursion service.

I have been quick to act on these threads because I don't believe a simplistic view of a very complex problem is going to accomplish anything other than cause tempers to fray.

Ed

I am going to begin by stating that I am not in favor of what I call entrepreneurial litigation. As a future attorney, I'm not impressed, nor proud of the members of my professon that run the "Have you been injured?" commericals. That being said, the rising costs of insurance indicate a multi-facted problem.

To begin with, only a small percentage of civil cases at the Federal level ever make it to trial. That being said, the large jury verdicts that are infamous in the tort world tend to be the exception rather than the norm. That being said, a majority of Federal civil cases end before trial because of several reasons, such as dismissal, summary judgment, or settlement. Of course, settlement, and even summary judgment often involve paying out money damages, which or course, impacts insurance. Even if you as a defendant are able to win a summary judment or a dismissal, you are still going to have to pay your attorney, unless you can get some fee shifting.

Second, another major problem is what experts call "magic jurisdictions." These are civil courts in particular counties or states that have elected judges that are very plaintiff friendly, and juries that are willing to doll out cash awards. One such magic jurisdiction is Madison County, Illinois. Madison County is the focus of a lot of the asbestos litigation, and other litigation. A problem is that out of state defendants, if they are subject to personal jurisdiction in that state (big subject) can often remove their case to Federal District Court, which is supposed to be fairer. The problem is that a lot of Federal judges remand the class-action cases back to state court, saying that each plaintiff must meet the "amount in controversy" requirement, which is sometimes hard to prove. Either way, litigation is expensive, even if you are a defendant.



The judge issue cuts both ways. Federal District, Circuit, and Supreme Court judges are appointed for life, and have salary protection. Impeachment is rather difficult, but judges have been removed from the bench, one named Nixon for lying to a grand jury. The idea is that life tenure and salary protection allows the judges to act independantly, and without fear or reproach by an angry Congress or people. Of course, this can lead to what some call judicial activism, which can be a problem.

On the other side of the coin, you have states like Illinois which allows judges to run on their records, be of a party affiliation, make policy statements, and run a full scale political campaign. This past November, the race for Illinois Supreme Court turned ugly, as the two candidates duked it out with pretty nasty commercials. One was characterized as being a tool of big business, while the other was characterized as being a tool of the trial lawyers. Appointed or not, there are benefits and pitfalls to the judiciary system.



Insurance is a pain in the rear end until you have to use it. Insurance is designed to be a cost redistributive system. My dad paid slightly higher homeowners rates because a bunch of people decided to build houses in a hurricane zone. As expensive as it is, it's usually better to have it.


I don't like a lot of tort law, but I have yet to see a program that reforms it in a way which doesn't hurt legitimate claims. Most people hate tort law until they need to use it, hopefully we won't. The benefit of tort law is that it allows private individuals to recieve redress for wrongs done to them by other people. I don't know the specifics of the Scranton case, so I won't comment on it specifically. However, if anything, it may be a wake up call for museums which own their own railroad to keep track of tresspassing, and to do as much as possible to eliminate ad hoc crossings, etc. A little prevention and documentation now may save you or your insurance company a bunch later.

That being said, it's late, I've been working on a legal writing assignment all day, and my head is swimming with an overload of legal stuff for one day. Thanks Mr. Levin for discussing the issue in a reasonable way.

While we're on the insurance topic, could the folks who know possibly give a quick breakdown of what operators are facing in terms of insurance?

And while we're at it, are there precidents for things like this? Has someone been scalded by escaping steam from old number 99 or tripped on a rail before and sued the operator? Granted, issues where there was negligence on the operators part (a certain crown-sheet failure comes to mind) are obvious if they bring on lawsuits, but what about other cases? involved are obvious, but What's the insurance company's reasoning for the ever-increasing premium, and is there anything that can be done to fight it?

Thanks guys and gals. This is defintately the best place around to find out information from the experts.

Ok, I'm letting this go for a bit longer, but I still consider it off topic. The posts are of the "This is what --I-- don't like" variety about the business environment and how **it may** apply to the preservation business. The forces being discussed are fundamental to the business climate and involve macro economics. I would consider on topic posts to be addressing what individual RR preservation organizations can do to minimize exposure to tort law cases or discussion the pros and cons of various bills in a governing body that would affect railroad preservation. Belly aching about life is a human activity, but our mission statement at RyPN doesn't embrace it. We wish to focus on a very narrow field, railroad preservation.

Thanks for your efforts to remain civil and on topic.

Ed

Steve, I agree that insurance and litigation is a topic worth discussing, but I think Ed made the right choice.

The post in question didn't come across, at least to me, as an attempt to start a dialog on insurance or litigation. There were no "how does your group address this?" feel to the message. There are literally thousands of web sites where an anonymous person can post an unsupported anti-lawyer opinion - the Interchange doesn't need to serve that function in addition to its own.


Now, for my challenge to the Moderators:

get on the stick, boys.

This place has "degenerated" a bit in the last few months. In the past I have viewed it as a refuge from anonymice, "what's your favorite engine?" threads, and the like. Interchange can be a place to share information and deal with tough issues like insurance and litigation.

But experience shows that the people who contribute to those threads don't hang around when this board is populated with anonymous rants, questions about Amtrak grade crossing accidents, etc.

Enforce the guidelines, ESPECIALLY the one about silly screen names and scrutinizing anonymous posts, and this place will be a site to be proud of. Continue down this path and Interchange will become just another railfan.net, Chaski, or Trainorders clone.

And that would be a shame.

JAC

I frequently wish to give advice about the legal system to people, but I am specifically forbidden to do so by our malpractice insurance company. When I was in the private sector, they sent us all letters about how giving advice to non-clients would result in having our insurance terminated. In the public sector, the only change was we are not allowed to give any advice to anyone, period.

As a result, I've pondered setting up a sort of pro-bono affiliation of persons in the legal field specifically for the use of museums and non-profits. Unfortunately, I'd have to get malpractice insurance for the group as well, which puts me back at the beginning of this issue. Short of a rich uncle, which I do not have, I'm at a loss as to how to fund it. But I do still see a definate need for something like this.

There are some low cost services that can be subscribed to such as LAWPHONE, which basically gets you a consultation on an occasional basis for a small annual charge. If the consultation turns into a court case, additional charges will of course apply. I have no idea whether anybody affiliated with that or similar organizations has experience in RR liability or non profit issues. Small businesses might find it generally useful.

Perhaps TRAIN and ARM could consider the idea of having an expert counsel in our specific area on some sort of retainer for members inquiries at a reduced rate? Seems to me our existing industry associations are in a position to take the lead. No doubt some of the larger institutions may already have retained counsel, but might support a somewhat higher dues to support the idea. Would be a bargain for the smaller guys.

dave

That sounds like a good idea, but don't forget the little guys, live steam, park trains and backyard railroads. A few dollars a year for advice from an expert on insurance and liability would be worth it.

Liability can be a problem, I know a gentleman who is a structural engineer and will help at a museum but won't give any advice on anything in his field because of the liability.

I would also note it may not be the big awards the drive up insurance costs but the small ones. I know of two instances at different restaurants where elderly women fell and broke bones and sued for less than ten grand. The first because the curb wasn't painted yellow, and the second because the bottom step had less of a rise than the rest. The insurance paid without going to court.
Go figger.

Actually we haven't been consciouly attempting to change the level of moderation, up or down--from the mod's and management's side of the fence, things look recently as though there are proceeding much as always in recent years, and the level of moderation required and exercised has been about the same as in recent years.

A few notes on the specific comments:

1. We do not have anything in the guidelines relating to choice of screennames. We have a general rule against profanity but otherwise screenname choice is not regulated on the Interchange

2. We are still trying to evaluate all posts, including anonymous posts, against the guidelines at the same level of scrutiny and using the same degree of judgement as has been customary. In other words, no one has consciously tried to either tighten or relax the policies.

If you could let me or Ed or Randy know in greater detail back-channel which recent threads particularly concern you we'd be glad to take another look and see if there is anything in them that would cause us to need to take action in light of the Guidelines, that wasn't apparent to us at first scrutiny.