9 December 2004

Smash-o-Rama

It was 3:45 p.m. on Sunday, September 12, 2004. A locomotive traveling at 43 mph and trailing 89 freight cars plowed into a car transporter high-centered on the tracks. Three restored Porsche Speedsters, plus a 1965 356 SC and a 1988 911 Cabriolet were demolished, and pictures of the event were soon all over the Internet.

Each of the Porsches was owned by European Collectibles (www.europeancollectibles.com), a well-known dealer in Costa Mesa, CA. The cars had been in a show held at the county fairgrounds in Ventura, CA, where the transporter driver decided to exit the facility by crossing some railroad tracks that passed behind the show grounds, rather than backing up a long distance to use the main exit. As the transporter was crossing the railroad tracks, the bottom of the trailer got stuck on the raised railroad track embankment.

Lt. David Wilson of the Ventura police arrived on the scene and immediately called the railroad to stop train traffic. At the same time, the driver was trying desperately to get the transporter off the tracks. But just a minute or two later, a freight train came barreling down the track and T-boned the stranded transporter, breaking it in half and sending collectible Porsches flying everywhere.

"We were able to get the driver out of the cab, luckily," Lt. Wilson said. The driver suffered only minor injuries while fleeing the impact, but the Porsches didn't fare as well: All five are believed to be totaled.

The losses were substantial. Two of the Speedsters were fully restored '57s, for which the dealer believed it had buyers when it decided to send them to the show. The third was the personal car of European Collectibles owner Nick Clemence, a black '57 with Rudge wheels that had only traveled 147 miles since a $175,000 restoration. The SC and the 911 had just been purchased at the show for resale.

Who Do You Sue?

Of course, the question that most interests us in this column is who do you pursue a legal claim against in a case like this? The situation is likely not as simple as calling your car insurance company, as you might not even be covered for such an accident. Many policies exclude coverage for losses that are incurred while a car is being transported by a common carrier. The reasoning is that the risk should shift to the transport company, and its insurance should pay the claim.

The transport company seems like an easy target for liability, but even this is not ironclad. Its legal obligation to you is to use reasonable care in transporting your vehicle to protect it from damage. This raises the question of whether the driver should have known he would get stuck. The law will expect the driver to have an appropriate level of skill and experience, but whether or not he should have recognized the problem depends on the physical characteristics of the railroad crossing. He is required to exercise reasonable care, but that doesn't mean he has to stop at every unfamiliar crossing and check it with a tape measure. (Note: Before you hip your next car, check with both your insurance company and that of the transporter to see just who is covering your car and for how much.)

How about the railroad? They were warned about the problem and didn't get the train stopped in time, but again, the legal question is whether they acted reasonably under the circumstances. It takes a long time to stop a freight train, and the one or two minutes that were available to get the message from the railroad's office to the engineer may not have been enough.

It sure seems like there must be a problem with the design and condition of the crossing. If the railroad knew about such a dangerous condition, and did not repair it or provide appropriate warnings, it could be found to be negligent and liable for the damages. Similarly, the fairgrounds could be found negligent if it was aware of the crossing problem and didn't advise participants of the danger.

Winning Is Not Collecting

As with any legal claim, however, winning a lawsuit is only the first step. Collecting your money can often be tougher. In this case, the transport company was a small, independent carrier, and its insurance coverage is unknown. It wouldn't be hard to imagine that the claim could exceed the carrier's combined insurance coverage, or even its net worth.

On the other hand, a railroad should have the "deep pockets" that would assure a recovery if liability is established. But that can be a two-edged sword, as its financial strength can also allow it to make the legal battle a costly one. One thing is to keep in mind is that you usually can't recover your legal fees in claims for personal and property damage resulting from negligence. The harder you have to fight to establish liability, the smaller your eventual net recovery will be. In this case, we wish the best of luck to Nick Clemence and European Collectibles. Though his inventory, along with his cherished Speedster, will likely never be replaced, hopefully he can avoid a long legal battle that would make this bad situation even worse.

John Draneas is an attorney and car collector in Oregon. His comments here are general in nature and are not a substitute for consultation with an attorney. He may be contacted at legalfiles@sportscarmarket.com.

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