Only Truck Driver Responsible for Accident

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In Progressive Paloverde Insurance Company v. BJ Trucking Earthmover, L.L.C. Defendant, et al, No. 21-30379, United States Court of Appeals, Fifth Circuit (July 15, 2022) established who was responsible for the accident and resulting injuries.

BACKGROUND - The Accident

On the day of the collision, Jenkins was hauling sand in Southeastern Louisiana. He was driving a semi-truck pulling a dump trailer.

Jenkins attempted to cross the railroad track at DOT#930094V. The crossing is marked by two stop signs and two "cross bucks." Illinois Central Railroad, Co. ("IC/CN") owns the track on which the Amtrak train was traveling at the time. The train was traveling at the permitted track speed of 79 miles per hour.

Jenkins neither slowed nor stopped at the crossing as he approached it. Jenkins drove into the crossing, and he and the vehicle were struck by the train.

CAUSE OF THE COLLISION

Injured people employed on the train brought their claims under the Federal Employers Liability Act ("FELA"). FELA provides the exclusive remedy for a railroad employee engaged in interstate commerce whose injury resulted from the negligence of the railroad.

He must yield the rightof-way to any approaching train and then shall proceed only upon exercising due care and upon being sure that it is safe to proceed. A motorist's failure to comply with these duties suffers legal consequences.

Amtrak met the burden by providing a crossing that can be traversed by a motorist who uses reasonable care.

INSURANCE

Jenkins's policy with Progressive named Heck as an additional insured. Heck pleaded that Progressive was "obligated to defend, indemnify, and insure Heck" for the accident. However, the district court agreed with Progressive that its non-trucking exclusion barred coverage of Heck.

ZALMA OPINION

Mr. Jenkins limited the insurance coverage he bought to protect third parties he might injury while operating his tractor and acquired a policy that excluded coverage while he was hauling property. He was clearly negligent and that negligence caused his death as well as injury to those on the train and the train itself. No coverage for anyone and the finding that he was solely responsible for the accident and injuries the injured could only collect from his estate. Sad for those injured who would not have been injured had he stopped at the crossing.


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Barry Zalma, Esq., CFE, is available at http://www.zalma.com and [email protected].

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