D.c. Metro Girds For Crush Of Lawsuits In Fatal Crash

Tens Of Millions Of Dollars In Costs Possible, Analysts Say

July 13, 2009|By The Washington Post

WASHINGTON - - First came the crash and the rescue efforts. Then the news conferences, the memorial services and the official investigations. Now come the lawsuits.

It took just two days after last month's deadly Metro crash for the first personal injury lawsuit to be filed in federal court. Five others have followed, one seeking as much as $25 million in damages. Legal experts said the number of liability claims for the crash, which killed nine and injured 80, can be expected to rise for months and, perhaps, years.

Legal damages could run into the tens of millions of dollars and, if negligence is proved and punitive damages awarded, they could easily reach into the hundreds of millions, legal analysts said. Wherever federal authorities place responsibility for the tragedy, plaintiffs will be seeking money, first and foremost, from Metro.

"The subway system has such a deep pocket, there's no reason to go beyond," said John Cooper, a personal injury lawyer in Virginia Beach and chairman of the railroad law section of the American Association for Justice, a trade group for trial lawyers.

"I don't really care what particular component was or was not up to snuff," said Cooper, who has not been retained by victims of the accident. "They should have figured that out before they put the train out there."

The costs for Metro are unclear, but agency officials said its insurance would probably cover the bulk of them. Metro is responsible for the first $5 million under its liability policy for such accidents, officials said. After that, coverage from a number of carriers kicks in.

Metro also has property insurance with a $1 million deductible. Three days after the accident, officials from one of its insurers delivered a check for $2 million, saying they knew that the cost of fixing property, repairing equipment and replacing subway cars would exceed the deductible.

Metro has not disclosed the extent of its coverage. If liability exceeds any cap, Metro would have to cover the remainder. In the past, "we've never gotten anywhere near those numbers," said Maryland board member Peter Benjamin, who was Metro's chief financial officer for 13 years. "The probability of having to pay enormous sums of money is relatively low. Our insurance rates will go up."

The last time passenger fatalities occurred was in 1982, when a train derailed near the Federal Triangle Station, killing three.

Metro officials also said it is highly likely that the agency will need to retain outside counsel to handle the claims. Officials at Metro said in a statement that it is too early to estimate the liability but that they "are confident that we will be able to meet our financial obligations." None of the jurisdictions that fund Metro would be liable for last month's incident, officials said.

Settling claims can be expected to take years, perhaps as long as a decade, analysts said. Lawrence M. Mann, a Bethesda, Md., personal injury lawyer not involved in claims arising from the June 22 wreck, said he only recently settled claims related to a Metro accident from nearly eight years ago.

Those injured in last month's crash, and relatives of the nine people killed, have up to three years to file a claim. None of the cases will make substantial progress until a federal investigation is concluded, said Mann, who has represented hundreds of plaintiffs in rail crash lawsuits.

The lawsuits make a number of allegations - that novice train operator Jeanice McMillan, who was killed in the crash, failed to keep proper watch and failed to brake early enough; that McMillan was not properly trained and supervised; that the train was traveling too fast; and that Metro failed to properly maintain the braking and computer systems designed to prevent crashes. At least one lawsuit also names Alstom Signaling as a defendant, saying the company was responsible for a malfunctioning circuit that failed to detect that McMillan's train was speeding toward a stopped train.

Federal investigators say the emergency brakes on McMillan's train were engaged about 425 feet before impact. Next weekend, investigators plan to hold tests to establish when McMillan would have been able to see the train ahead and to measure that against the point where the brakes were deployed.

In time, legal experts said, there will probably be scores of individual legal claims, which eventually will be consolidated under the jurisdiction of a single federal or superior court judge, said Mann and other lawyers.

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