Dear Mr. Schollmeyer:

At your request, the following addresses the risk assumed by a UTU member who drives either a railroad owned vehicle or the member’s personal vehicle for the convenience of the railroad in order to more quickly perform job tasks. In summary, a UTU member who drives a railroad vehicle or his personal vehicle while on duty exposes that UTU member to potential liability and litigation expenses in the event of a motor vehicle accident, whether or not the worker initially appears to be at fault. Since UTU members are not required by contract to drive a motor vehicle, their best protection is to decline driving duties, and to walk the job or request transport by company approved shuttle.

This is a complex subject, with different motor vehicle laws by state of occurrence, so each situation must be examined independently. However, following are some scenarios and circumstances to consider:

1. The first scenario involves a UTU member who drives a railroad owned vehicle that is involved in a motor vehicle accident, and the driver of the other vehicle is at fault. The other driver and his insurance company will be obligated to pay damages both for the property damage to the vehicle and for any personal injury caused to occupants of the railroad owned vehicle. If the other driver is uninsured or underinsured for the total amount of damages caused, the underinsured motorist coverage applicable to the UTU driver’s personal vehicle may pay additional damages. Both in Oregon and Washington underinsured motorist coverage of $25,000.00 per person at a minimum is required by law.

However, if an argument is made that the UTU member driver is also partially at fault in the accident, a claim may be made against him by the other driver or passengers in the other driver’s vehicle. In such a circumstance, the railroad employer would likely also be named in the lawsuit. If so, the railroad would be obligated to defend the claim against the UTU member. However, the defense may also be tendered to the UTU driver’s personal insurer who may become obligated to participate in the defense of the claim. In either scenario, it would have been preferable for the UTU member to have not been the driver of the railroad’s vehicle at all.

2. The second scenario involves a UTU member who drives his personal vehicle while on duty and is involved in a motor vehicle accident determined to be his fault. He could be sued by the other driver, and by injured passengers in the other vehicle as well as those in his own vehicle. While the railroad would also likely be sued since the driver was in the course and scope of his employment at the time of the accident, railroad counsel would probably tender the defense of the action to the driver’s personal automobile insurer. Usually insurance coverage on the vehicle involved is the primary source of the defense of the claim. As a result of tendering the defense to the driver’s personal insurer, the UTU member’s personal insurance premiums may thereafter increase. The railroad, however, would also remain secondarily responsible for the damages caused. If the UTU member’s insurance coverage was inadequate to cover all of the damages resulting from the accident, then the railroad would be obligated to pay the balance.

3. For railroad vehicles, the railroad must carry liability insurance or self-insurance at the level required by the state in which a company vehicle is operated, unless otherwise required by labor agreement.

4. The UTU National Agreement, Article IX, provides off-track vehicle accident benefits to employees covered by the agreement while such employees are riding in, boarding, or alighting from off-track vehicles authorized by the carrier and are (1) deadheading under orders or (2) being transported at carrier expense. This article has no language designed to protect “drivers” of off-track vehicles.

In summary, it is preferable that a UTU member not drive their personal vehicle for work related purposes. Further, it is clearly preferable that UTU members not drive a railroad owned vehicle. If further questions arise
in regard to this letter or if I can be of further assistance to your members, please call me.

Very truly yours,
/s/Vernon W. Harkins

RUSH, HANNULA, HARKINS & KYLER, L.L.P.