Employees being transported by independently contracted vans or taxis

by: Jay A Kaplan
Did you know...
that if you are injured when riding in an independently contracted Van or Taxi you may not be able to collect damages under the F.E.L.A. The determination of whether or not you are entitled to collect damages involves several factors. Typically, this issue arises where either a locomotive engineer or trainman has been injured while dead-heading and travelling to or from his or her train. Usually, the mode of transportation is a van or taxi operated by a third party which is used for transporting crew members. As attorneys, we are often asked who is legally and financially responsible if that van or taxi is involved in an accident and crew members are injured. As you might expect, the answer is, "It depends". First, it depends on whether the van or taxi was, in fact, hired by the railroad and thereby acting as their agent. It secondly depends on whether the accident resulted from the negligence of driver of the van or taxi. Finally, it depends greatly upon the type and amount of insurance available from other parties to cover the injured crew members if the railroad is not at fault.

Under the F.E.L.A. liability is imposed on a railroad for injury resulting from the negligence of its officers, agents and/or employees. A line of cases have held that the van or taxi company (transporter) is an agent of the railroad so long as they are hired under contract by the railroad and are performing "operational activities" required to carry out railroad functions. In one famous Court case where the railroad utilized taxi services to transport its employees, the Court stated that the transportation of employees is "just as essential to the 'operational activities" of the railroad as the movement of equipment" and thereby held the railroad liable for injuries sustained by employees in the course of said transportation by Taxi.

Further, the contract for hire with the railroad may be either written or oral. A written contract in the vast majority of cases is much easier to prove as compared to an oral contract, however this depends on the particular factual situation involved. The more difficult inquiry, however, is whether the van or taxi company is engaged in "operational activities" for the railroad. At this time there is no specific universal standard of what constitutes "operational activities". However, certain courts which have addressed this issue have found the transportation of employees while on the job to be one of the characteristics of railroading, and hence an "operational activity".

The preceding discussion presupposes that the accident was the result of the van or taxi driver's negligence. Suppose, however, that the accident results from the negligence of the other driver who is involved in the accident and that driver has no insurance. While the courts have been willing through the years to expand the scope of a railroad's liability under the F.E.L.A., they have not yet gone so far as to hold that a railroad can be held liable for the negligence of third parties beyond its control, even in an instance where the negligence of uninsured motorists operating vehicles on the roads and highways is foreseeable.

Thus, in a situation where the accident resulted from the sole negligence of a third party driver, the injured railroader's first inquiry should be to determine the nature and extent of the negligent third party's insurance coverage. If the negligent third party has little or no insurance, then the inquiry would turn to whether the van or taxi company carried uninsured or underinsured insurance coverage that would afford coverage under this factual situation.

At this point in the inquiry, the injured railroader should also look into the level of his or her own insurance coverage and determine whether his or her auto insurance might, in fact, be applicable or add additional coverage. The best way to determine this is to contact your insurance agent and ask whether the provisions of your auto insurance policy would cover you as a passenger in a vehicle hit by an uninsured motorist where no other insurance coverage is available. The reason this is an issue of concern is that if the accident does not result from any negligence on behalf of the railroad or its agent (i.e. the van or taxi company that is working under contract and performing "operational activities" required to carry out railroad functions), then the source of money to pay for the damages would be from the negligent third party driver. However, if the negligent third party driver is uninsured, then the injured railroader would be forced to look first, to the van or taxi companies' uninsured motorist insurance provisions, or secondly, to his or her own automobile insurance and, in particular, the uninsured or underinsured motorist provisions thereof.

This now brings us to a situation involving a crew member's car. If the crew member is involved in an accident while transporting him or herself and perhaps other crew members in his or her own personal vehicle when deadheading, and that accident is the result of the sole negligence of the other driver, then the first question that you would need answered is whether the other driver has adequate insurance. Many states today (and insurance is an area of law that is governed solely by state law) allow drivers to operate vehicles with only minimal insurance. Typical levels might be as low as $5,000 in property damage and $10,000 in bodily injury coverage. In such a situation, it is important to immediately determine the extent of the other driver's insurance and, if the other driver has little or no insurance, then to immediately turn to the not at fault co-worker's driver's insurance, and if none, possibly to your own insurance carrier for coverage under either the uninsured or underinsured provisions of your own automobile policy, depending on the applicability of said policy.

It is very important to understand that these two coverages are not part of your policy unless you specifically ask for and receive this coverage from the insurance company. Moreover, while the tendency of most people is to obtain the minimal limits of uninsured and/or underinsured coverage if made available to them because of cost savings, it is far more prudent and ultimately cost effective if you obtain the maximum coverage available under your insurance company's uninsured and/or underinsured motorist coverage. Our office has become aware in recent years of more and more situations involving drivers who are being forced to look to their own uninsured or underinsured motorist coverage only to realize that the limits are totally inadequate, based on the nature and extent of their injuries and damages.

In conclusion, prior to allowing yourself to become a passenger in a van, taxi, or privately owned automobile for the purpose of transporting you from one point to another, you would be well-advised to inquire beforehand, as to the levels of insurance coverage applicable to the vehicle. Additionally, it would be prudent to contact your own insurance agent, describe the extent to which you use your car for company business or ride in a co-worker's car, or if applicable, ride in vans or taxis that do not possess adequate insurance coverage, and obtain adequate uninsured and underinsured motorist coverage if you do not already have it or increase the limits if you do. While the additional coverage may cost you a little more each year, it will pay for itself many times over if you are ever in need of it.

Lastly, please remember if the accident is caused entirely by the negligence of a third party and not due to any negligence on behalf of the railroad or their agent (transporter), then the action does not fall within the applicability of the F.E.L.A. and your only recovery may be under one of the previously described scenarios.

Please feel free to contact the author of this article, Jay A. Kaplan, for a free consultation concerning the F.E.L.A. and other personal injury matters.

Union Approved F.E.L.A. Attorneys

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