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CSX Loses Bid To Be Protected From Suit From Passengers

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  • CSX Loses Bid To Be Protected From Suit From Passengers

    A desperate effort to revive a proposed commuter rail line through greater Orlando was defeated again on Friday, apparently dooming the four-year project that will now join other failed passenger train plans in Florida’s history.
    It was a rarity in Tallahassee, where money and power generally win the day.
    Central Florida business leaders had hired the Capitol’s top lobbyists, argued from the loftiest perches in the Legislature’s power structure and secured support from two Florida governors in the past four years.
    But a bipartisan majority of senators never bought the argument that the state needed to spend hundreds of millions of dollars to buy the rail line from CSX Transportation for the proposed SunRail system that would bypass major tourist attractions.
    More troubling to senators was the insistence by CSX that the state take on legal responsibility for accidents involving passengers, *commuter-train employees and motorists even if CSX were at fault.
    “It’s not a bad concept. It’s just a bad deal,” said Sen. Paula Dockery, R-Lakeland, who led opposition in a vote defeating the plan 16-23 late Friday, the last day of this year’s legislative session.
    She said the estimated $2 billion-plus cost to state, local and federal taxpayers over 30 years for a 61.5-mile line to run from DeLand to Poinciana while bypassing most major tourist locations was too high.
    “Let them walk away,” she said of CSX. “If the taxpayers of the state of Florida aren’t getting a good deal, let them walk away. We shouldn’t get into a deal just because we’re being held hostage.”
    The SunRail plan drew criticism from some Lakeland businesses and city officials over fears it would increase train traffic through downtown.
    City Commissioner Justin Troller said Friday night that he was happy to see the bill defeated.
    “I’m just glad that the elected officials of this state did the right thing,” he said.
    Troller said he didn’t think enough planning had gone into the effort and said the state needs a comprehensive transportation plan.
    “I think this put the cart before the horse,” he said.
    But Commissioner Gow Fields made clear Friday night that he was not celebrating
    the bill’s defeat.
    “We are going to have more trains through downtown Lakeland whether or not that Senate bill failed,” he said. “Lakeland needs a plan to deal with more traffic either way.”
    That’s because the city sits on the major East-West route for freight traffic through this part of the state, he said, and train traffic will increase as the economy improves and the population again begins to grow.
    Fields said he was “very concerned” that with the defeat of the bill, the focus could now shift off of the problem of transportation.
    “Our state leaders have failed miserably to plan for traffic,” both automobiles and trains, he said.
    Backers of the CSX rail purchase struggled Friday to right their sinking plan.
    At the last minute, the SunRail liability deal was attached to an unrelated bill.
    And the bill included a complicated provision to allow only three counties — Palm Beach, Broward and Miami-Dade — the option of approving a $2 per day surcharge on car rentals to help pay for the Tri-Rail commuter train that operates in those counties.
    The move was an attempt to entice South Florida Democrats to support the Orlando commuter-train deal.
    “Here’s what we can get for South Florida,” said Sen. Jeremy Ring, D-Fort Lauderdale, in a rare display of legislative bartering for votes on a controversial bill. “We can get $180 million.”
    Florida DOT and CSX officials have said they will not proceed with further negotiations to complete the land purchase.
    Florida lawmakers have talked for more than 30 years about plans to bring various passenger train lines to the state but have failed all but once, approving Tri-Rail about 20 years ago as the only major commuter-rail system in the state.
    [ Ledger reporter Lyle McBride contributed to this report. ]

    COMMENT: Seems a bit overreaching on the part of CSX to completely place liability on the State of Florida even for its own negligence. Also, I am sure that everyone knows this but I will say it anyway, FELA only covers railroad employees and not passengers. A passenger's claim is brought under a different set of laws.
    Steve Gordon
    Gordon, Elias & Seely, L.L.P.
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  • #2
    Not Derailed Just Yet.....

    By Bill Thompson
    Staff writer

    Published: Saturday, July 4, 2009 at 6:30 a.m.
    Last Modified: Friday, July 3, 2009 at 10:33 p.m.

    SunRail is not dead even though its deadline has passed.

    The $1.2-billion project, which would establish commuter train service in the Orlando area, appears to have been resurrected even though the agreement between the state and CSX Transportation expired last Tuesday.

    Florida Department of Transportation officials in Tallahassee and CSX executives are negotiating an amendment to the existing contract, said Steve Olson, FDOT spokesman in DeLand. He declined to comment further.

    Last Monday, though, U.S. Rep. John Mica, a Winter Park Republican and key supporter of the project, told reporters that the company had agreed to renegotiate a controversial liability provision.

    That clause would make taxpayers responsible for almost any accident that occurred along the 61-mile section of CSX's A line that the state plans to buy for SunRail, which would operate between DeLand and Poinciana.
    CSX would be responsible only for its trains and personnel in a mishap under the contract.

    In each of the last two legislative sessions the state Senate has rejected the CSX contract because of concerns over the liability provision.

    Mica and other Orlando-area political leaders at the press conference hailed CSX's willingness to keep talking as a major breakthrough that keeps the 20-year-old effort for a commuter train alive.

    The hope seems to be that a new liability clause deal can be struck and taken up in a special session in the fall.

    Yet the leader of the opposition, Sen. Paula Dockery, R-Lakeland, said she was not surprised that negotiations would continue because the date had always had an artificial quality.

    Dockery also said nothing had changed with SunRail, thus she criticized the recent meeting with reporters involving Mica and other SunRail "cheerleaders" as manufactured news.

    If proponents really wanted to demonstrate they were renegotiating the details with CSX, Dockery said, they would ensure taxpayers would save money since purchasing the tracks is unnecessary; they would rework the liability provision so taxpayers are not the only ones on the hook; and they would invite people from places like Ocala, Lakeland and Dade City that would see the additional freight traffic.

    The FDOT has already spent a considerable amount of taxpayer money in attempting to bring the commuter train online.

    The Lakeland Ledger recently reported that since 2004, when negotiations between the FDOT and CSX began, the agency has doled out $44 million for 57 contracts for services, including legal work, surveying, engineering and public relations.
    Kevin Thibault, an assistant secretary with the FDOT, told the Ledger that spending that money, provided by local, state and federal sources, was "not a wasted effort," and in fact was necessary to gain approval for almost $700 million in federal dollars to operate SunRail.

    Sen. Mike Fasano, a New Port Richey Republican who chairs the Senate transportation appropriations committee, told the newspaper the $44 million in contracts was in line with what FDOT had said it needed for planning and engineering.
    The outcome of the renewed talks have more direct implications for Ocala, which has benefited from the project with the new $25 million overpass on Southwest 17th Street that opened in April.

    If the deal goes through, CSX would shift as many as eight trains a day from to CSX's S line that runs through Citra, Ocala and Belleview.

    Some critics, however, have maintained that CSX plans to make the S line its main freight-train route through Florida, with up to 50 trains a day traveling through Marion County, or about three times the current number.

    CSX has countered that it would continue operating on both lines if the contract fell through.

    FELA FELLA COMMENT: As stated in the initial post, to absolve CSX from liability and pass it in to the taxpayers of Florida for its own negligence was definitely overreaching and the Florida legislature is to be commended for, at least on the surface, sticking to its guns. Who knows what the final deal will look like and this could all be posturing that so often takes place in legislative systems.

    Two things you would rather not see made: Laws and Sausage.

    Steve Gordon
    Florida FELA Overview - Law Firm Gordon & Elias, L.L.P. Attorneys Houston, Texas
    Steve Gordon
    Gordon, Elias & Seely, L.L.P.
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    • #3
      Amazing what my company will try to do. While I pride my self on my cynicism they define it! Phew!
      si hoc non legere potes tu asinus es!


      • #4
        Leaders say SunRail is on track
        Mike Synan
        July 8, 2009 1:04 PM

        Orlando Mayor Buddy Dyer says SunRail is still on track, but when I asked him how that was possible, he had few answers.

        They've got a pledge from Congressman John Mica for more federal money, but liability is what's killed the deal with CSX two years running in Tallahassee.

        "What we're doing is we're remaining with the original deal."

        So how in the world is that on track?

        "The argument was relating to the gross negligence or intentional misconduct (portion of the liability). We'll probably be able to work with CSX on that."

        The problem is they haven't so far, and certainly haven't talked to opponent Paula Dockery or the other Senate opponents about a revised liability deal. Even more shocking is that Dyer has come up with a plan B. Local governments would provide liability to CSX.

        "Which would be to have the local authority take it over and provide the liability, but certainly that would put us further back in the cue and that's not our best option."

        Steve Gordon
        Steve Gordon
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        • #5
          Florida's own passenger rail plan is stalled

          Florida's own passenger rail plan is stalled By Dave Hodges DEMOCRAT BUSINESS EDITOR • July 26, 2009 A commuter rail line winding 61 miles through Central Florida, SunRail is the state's proposal for providing its own passenger service. Advertisement This past session of the Florida Legislature brought the plan to a halt, as the Senate defeated the bill allowing the state to purchase the CSX tracks needed for the project. Aside from the cost involved, accommodating the passenger service involves relocating CSX's freight trains to a corridor that runs through Ocala, Lakeland and other communities, where some residents object to the added rail traffic. As a condition of the track purchase, CSX has also asked that the state assume all liability for rail accidents that may occur on the SunRail line, but lawmakers weren't willing to grant that. "We certainly haven't abandoned the SunRail project," said Fred Wise, manager of the Florida Department of Transportation's Rail Office. "We are working with local government and looking at the options in terms of how we might proceed." "It was a significant setback, but we haven't given up," he said. SunRail's main artery would begin in DeLand and continue through Lake Mary, Altamonte Springs, Winter Park, Orlando and through Kissimmee to Poinciana. The train would provide at least five trips during morning and afternoon rush hours. It would operate on a 30-minute frequency during those peak hours and a two-hour frequency during non-peak hours. SunRail supporters also note that federal-stimulus dollars could be available for the purchase of the CSX line. Opponents, however, say they are determined to stand their ground.
          Steve Gordon
          Gordon, Elias & Seely, L.L.P.
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          • #6
            Cities reignite rail talks

            July 30, 2009

            By Isaac Babcock
            Observer Staff

            Just a day before Orlando Mayor Buddy Dyer sat down with Florida Sen. Paula Dockery to try to reach a compromise to revive the comatose SunRail system, Winter Park had its own discussion about the commuter rail's future in Central Florida on Monday.

            Lawmakers across the state are continuing to pursue a commuter rail system, despite a major setback when they failed to secure enough votes in April to authorize building the system. On June 30, a purchase agreement between the Florida Department of Transportation and rail company CSX expired, though neither entity has officially terminated the agreement.

            The crux of the issue, as it had been on the Florida Senate floor, where it died during the last legislative session, is a provision that would remove liability from CSX for accidents occurring along the SunRail system's lines.

            Earlier in the month Dyer had talked about CSX being flexible on a portion of the liability agreement that would hold the rail company responsible if an accident occurred due to gross negligence or intentional misconduct.

            That hasn't changed officially, said Commissioner Beth Dillaha. She said that the liability provision was the biggest problem with the former rail deal.

            In absence of a compromise with CSX, some legislators, Dyer included, have pursued other options. The "Plan B" option that had been spoken of as an alternative before the rail bill died in March was to shift the liability burden from the state down to the local level.

            "I spoke to [FDOT District 5 secretary Noranne Downs] about Buddy Dyer's Plan B for the locals to provide liability to CSX … Buddy Dyer and the Commuter Rail Commission are working on a Plan B, but have not yet worked out the details and have nothing to report," Winter Park City Engineer Don Marcotte said.

            That kind of move would be unacceptable, Dillaha said, as many municipalities couldn't withstand the financial blow that a lawsuit following an accident could deal them. The state government would be more financially capable of absorbing those costs, she said.

            "The city of Winter Park could be bankrupted on a $50 million award," she said.

            More money could be flowing toward Winter Park's portion of the system, even before the fall legislative session. Congressman John Mica has promised an additional $950,000 toward Winter Park's rail station, though Marcotte said full documentation isn't yet available to back up such a promise.

            Dillaha said that in the fall hopefully there will be more answers about the deal, including a possible special session to discuss the project's future.

            "We'll see what happens come fall," she said. "It's not that far away."

            Steve Gordon
            Florida FELA Injury Lawyers | Railroad Worker Attorneys | Miami Orlando Tampa FL |
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            • #7
              State asks feds for $270 million for commuter rail

              The state is seeking $270 million in federal aid to help pay for the planned SunRail commuter train that would run through Central Florida.

              An application filed Monday with the Federal Railroad Administration said the money would be used to help offset the $1.2 billion cost of SunRail, which would link DeLand in Volusia County with downtown Orlando and Poinciana in Osceola County.

              The federal money would come from an at least $8 billion fund set aside to build high-speed trains in the country, plus some related projects.

              Florida also wants $2.5 billion for a train that could hit 150 mph on a 90-mile route between Orlando International airport and downtown Tampa, with a midway stop in Lakeland. A final application for that project is due Oct. 2.

              The 51-page application sent in Monday would lighten the financial load on the state, as well as the five local governments banding together to operate the commuter rail system and to buy 61 miles of track from the CSX railroad company based in Jacksonville.

              Florida officials contend the federal money should come from the high-speed fund because SunRail would feed passengers into the fast train. U.S. Rep. John Mica, R-Winter Park, says Washington has already pledged $300 million for the project, which has twice been voted down in the Florida Legislature.

              Ten areas are going after high-speed train money, including Boston to Washington; Portland to Seattle; and San Diego to San Francisco.

              Opponents have criticized the price tag of SunRail, saying Florida is doing little more than engaging in corporate welfare for CSX.

              That criticism could be blunted somewhat if the federal government ends up paying $570 million of the cost.

              State senators twice have balked at approving a $200 million insurance pact that assigns liability in case there is an accident with SunRail. Critics contend the plan placed too much risk on the state and not enough on CSX.

              SunRail enthusiasts hope to blunt that charge by having CSX assume more risk, particularly when its employees are at fault.

              The Obama administration may start awarding high speed grants by the end of the year.

              Dan Tracy can be reached at [email protected] or 407-420-5444.
              Steve Gordon
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              • #8
                Mass. Agreement May Pave Way For SunRail Liability Breakthrough

                BOSTON -- Massachusetts Lt. Gov. Timothy Murray announced a final agreement with CSX railroad Wednesday, enabling the state to move forward with expanded plans for passenger rail.

                The sticking point apparently had been the liability clauses -- one of the same sticking points in Florida’s state legislature that resulted in the Senate rejecting the SunRaill agreement with CSX on the last day of the regular session last spring.
                Florida officials had been monitoring the Massachusetts negotiations, and several sources closely involved in the SunRail project have told News 13 that whatever Massachusetts worked out would likely find its way into the new Florida agreement with SunRail.

                According to the Massachusetts Governor's Web Site, the new liability agreement will operate “in a way that provides incentives for both parties to operate safely.”


                “CSXT will contribute $500,000 to help defray the cost of the liability insurance policy the MBTA carries for the entire commuter system. Additionally, in the event an accident occurs involving a freight train and CSXT is clearly at fault because of willful misconduct, the rail road will be responsible to pay the deductible on that policy, up to a maximum of $7.5 million per accident.”
                The original Florida agreement with CSX was a strict no fault liability, and in accidents involving a freight train, CSX assumed no responsibility for anything other than its own trains and personnel.
                That was cited as a main objection by a number of state senators in the spring who voted against the SunRail agreement.
                Supporters are hoping to renegotiate with CSX and bring a new deal to the legislature, perhaps as early as December, if there is a special legislative session.
                Steve Gordon
                Gordon, Elias & Seely, L.L.P.
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                • #9
                  Florida lawmakers call special session to talk about rail plans

                  By Marc Caputo and Steve Bousquet, Herald/Times Tallahassee Bureau
                  In Print: Tuesday, December 1, 2009

                  Millions more dollars for commuter rail. A new agency to oversee a bullet train. An agreement to spare taxpayers from some major lawsuits.
                  All are part of the proposal for a special lawmaking session starting Thursday that Senate President Jeff Atwater and House Speaker Larry Cretul called to boost money for South Florida's Tri-Rail and to get Central Florida's troubled SunRail rolling.
                  But two crucial things are missing before lawmakers convene in Tallahassee: Actual, detail-filled legislation for lawmakers to consider and the 21 votes needed for the legislation to pass in the Florida Senate. The Senate has killed SunRail for the past two years due to concerns about the cost, taxpayer liability and railroad labor protections.
                  The proposal Atwater released Monday — a summary of a bill still being drafted — has no legal protections for railroad employees who would work on the SunRail commuter line once the state bought the tracks from CSX. Currently, federal rail workers receive strong pension and workers' compensation benefits, among other protections.
                  The AFL-CIO said the lack of protection amounted to "union busting'' and is a deal killer. And that union opposition is a problem, said Margate Sen. Jeremy Ring, a Democrat who plans to sponsor the legislation.
                  "If I had union support, we would have 30 votes. Without union support, this will be tough," Ring said.
                  Right now, the Senate only has about 20 votes — one shy — to get the deal done.
                  Leaders say if the Legislature shows a stronger commitment to commuter rail, it will improve the state's chances of winning up to $2.5 billion in federal money for a bullet train, with the first leg connecting Orlando to Tampa.
                  Black lawmakers may skip the Thursday and Friday opening of the special session because they planned a national conference of state black legislators for this week in Fort Lauderdale.
                  The final vote on the rail legislation won't happen until next week, when legislators already had planned to be in Tallahassee for a week of committee hearings.
                  Under the latest proposal, Atwater said taxpayers would no longer be solely liable if the private company, CSX, was involved in an accident while hauling freight in Central Florida on tracks also used by SunRail. In some cases, CSX would be on the hook for up to $10 million in damages.
                  The plan would also dedicate up to $15 million yearly to South Florida's Tri-Rail system, which is in danger of defaulting on an agreement with the federal government to run 50 trains daily. Future rail projects, such as one proposed in Tampa Bay, could also access a new source of money the Legislature would redirect from Florida Department of Transportation's accounts.
                  The legislation would also seek to establish the Florida Rail Enterprise, similar to the Florida Turnpike Enterprise, to oversee all passenger rail.
                  All that is not enough to sway SunRail's chief critic, Lakeland Republican Sen. Paula Dockery. Legislative leaders have made SunRail the linchpin of the special session on rail.
                  "This is all about giving a sweetheart deal to CSX," said Dockery. "The fact is, they found money for Tri-Rail, and they don't need a special session to fund or help Tri-Rail. And there is no need to have a special session to get high speed rail."
                  The state would pay about $1 billion to buy tracks from CSX and build the 61-mile SunRail system in the Orlando area.
                  Because of Republican opposition over SunRail, legislative leaders need a few votes from Democrats to get the rail deal passed in the Senate. That's giving the AFL-CIO a stronger voice in the Legislature.
                  The Florida AFL-CIO's president, Mike Williams, suggested the state's Transportation Department is the real problem. He noted that FDOT sponsored a workshop for contractors last Feb. 24 entitled "Staying Union-Free in a Pro-Union World."
                  "We really see this as government-sanctioned union-busting at its best," Williams said.
                  Williams initially said "thousands'' of workers could lose job protections under the proposal, but then scaled back his number to fewer than 100. FDOT said only 12 Central Florida workers stand to lose their benefits, though they were guaranteed jobs elsewhere by CSX or could take the equivalent of six years of pay with them if they lost their jobs.
                  In South Florida, United Transportation Union workers sounded more supportive of the plans in the Legislature because it ensured Tri-Rail would continue to run.
                  "It keeps the trains running," said the union's local vice president, Steve Klemm. "It keeps our jobs."
                  Steve Gordon
                  Gordon, Elias & Seely, L.L.P.
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                  • #10
                    Fla. lawmakers open special session on rail

                    By BILL KACZOR

                    The Associated Press

                    TALLAHASSEE, Fla. -- Florida lawmakers are back in Tallahassee for their second special session of the year.
                    The Legislature convened Thursday for up to nine days to consider creating a commuter rail system in South Florida and providing an additional subsidy for an existing line in South Florida.
                    Gov. Charlie Crist and legislative leaders hope those steps also will attract $2.6 billion in federal stimulus funds to build a high-speed rail system between Tampa and Orlando that later may expand to Miami.
                    Lawmakers started the year with a nine-day special session in January to pass a budget deficit-reduction package before returning to Tallahassee in March for their regular 60-day session.

                    FELA FELLA COMMENT: Governor Crist, a moderate republican, is exercising his powers to make this work if it is possible. I think he has the best interests of Florida in his motivations. I just hope that he does not allow CSX to avoid its liabilities for injuries caused to patrons by CSX's negligence. The two goals can be achieved if CSX bargains in good faith. Time will tell....

                    Steve Gordon
                    FELA Lawyer - Florida FELA Overview
                    Steve Gordon
                    Gordon, Elias & Seely, L.L.P.
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                    • #11
                      I would rather watch sausage

                      Two interesting stories in the CSX - Florida saga

                      Florida rail plan on shaky ground

                      The Florida Legislature's special session on passenger rail projects included polarizing debate and a family feud.
                      Herald/Times Tallahassee Bureau

                      TALLAHASSEE -- A special lawmaking session on passenger rail projects opened Thursday with a Republican senator abandoning his support and critics firing off objections that could foreshadow more political trouble ahead.

                      With a close vote anticipated in the 40-member Senate, Sen. Carey Baker, R-Eustis, announced he no longer supports the legislation after learning it would allow for bullet trains throughout the state, the very purpose of this special session.

                      ``I'm not being given the opportunity to support the bill we had the past two sessions,'' Baker said. ``This is an entirely different bill.''

                      Baker was a yes vote in the spring, but now faces a Republican primary in his race for agriculture commissioner and many voters are fiscal conservatives skeptical of government spending. Baker said he still supports provisions calling for Central Florida's new SunRail commuter line and more money for South Florida's Tri-Rail system.

                      In another surprise development, a family feud between two Republican Polk County lawmakers further threatened the prospects of passage.

                      Rep. Baxter Troutman, R-Winter Haven, said he would abstain from voting because his family owns a warehousing and distribution company, Phoenix Industries, that has ``unique and dedicated service offerings with CSX.'' The private rail company could receive about $600 million for use of its 61-mile track bed for SunRail.

                      By announcing his abstention, Troutman put pressure on Republican Sen. J.D. Alexander, his estranged cousin, who heads Phoenix Industries, to also abstain. Alexander is a key backer of the SunRail deal, so his vote is more crucial than ever because of Baker's defection.

                      Alexander said the Senate counsel concluded he does not have a conflict of interest, but he has asked for a second opinion out of ``an abundance of caution.''

                      Troutman said it's a conflict to profit one cent from the CSX deal, and noted the legal troubles of former House Speaker Ray Sansom of Destin, who was indicted over state budget dealings involving a college that briefly employed him.

                      ``This could be a conflict of interest,'' Troutman said. ``Ray Sansom: Need I say more?''

                      LAWMAKER ILL

                      The Senate also might lose a yes vote from Larcenia Bullard, D-Miami, who was ill Thursday and might not be in Tallahassee for the final vote.

                      Debate quickly became polarized on the session's first day with nearly one-third of legislators absent. Supporters said rail projects would spur hundreds of thousands of new jobs and ease traffic congestion, while opponents disputed job-creation numbers and said the price tag is too high.

                      All told, the CSX deal could cost more than $1 billion. Tri-Rail would get an extra $15 million a year.

                      Gov. Charlie Crist sought to pressure reluctant lawmakers, saying it would be ``catastrophic and indefensible'' for them not to support the rail projects.

                      The weeklong session is needed, Crist and others say, to send President Barack Obama's administration a clear signal by year's end that Florida is serious about a long-range rail policy. That, they say, will bolster chances of Florida receiving some of the $3.2 billion it is seeking to finance major rail initiatives, including a high-speed train linking Tampa, Orlando and Miami, and another rail initiative along the Florida East Coast rail line.

                      Crist, who has backed away from Obama's stimulus package, reversed course again, saying the state must approve the rail deal in hopes of winning the federal cash.

                      ``I don't care where the money comes from,'' Crist said.


                      The Tri-Rail component is politically important because Republican Senate leaders may need votes of several South Florida Democrats to gain the crucial 21 votes. Acknowledging past controversy surrounding SunRail, senators sought to re-cast the issue in terms of a statewide rail policy and creating new jobs.

                      After five hours of testimony and debate, a bipartisan House council passed the rail legislation 12-0 to set up floor debate today. Republicans and Democrats alike cited the need to connect Florida's urban areas and to stop the reliance on adding more lanes of traffic on gridlocked expressways.

                      The House discussion centered on the possibility that 138 unionized CSX signal and maintenance workers could lose their jobs under the SunRail deal. But under a labor agreement, those workers must be assured of keeping their current salaries for six years, even if they are moved to lower-paying jobs or are unemployed. [Emphasis supplied by FELA FELLA]

                      The House is expected to pass the rail legislation by Monday and send it to the Senate, where debate is expected to be contentious, as it has the past two years, with the outcome far from assured. Tea Party members are organizing a protest outside the Capitol on Monday, calling the project a ``boondoggle,'' and on the same day, U.S. Sen. George LeMieux is expected in town to lobby for the bill's passage.[Emphasis supplied by FELA FELLA]

                      He'll have a tough time in the Florida Senate, where the best-informed senator on rail issues happens to be the biggest opponent. For two years, Lakeland Sen. Paula Dockery has killed the project with skillful questions about its cost and taxpayers' accident liability.

                      Legislative leaders persuaded CSX to accept more liability, but Dockery says it's not enough.
                      [Emphasis supplied by FELA FELLA]

                      Sen. Ronda Storms, R-Valrico, said blue-collar workers won't support a deal that doesn't help them. ``People are feeling two emotions: fear and anger,'' Storms said, ``and when they find out about this, they'll be angry.''

                      Herald/Times staff writer Lee Logan contributed to this report. Steve Bousquet can be reached at [email protected]

                      Sparks Fly on Liability in Senate’s Rail Debate

                      News Service of Florida - Dec 4th, 2009

                      Supporters of the rail bill that has pulled lawmakers into special session this week have argued that liability provisions of the train legislation have changed from the plan that was defeated in the Senate last session.

                      But early into the Senate’s first chance to talk up the plan to boost passenger rail in Florida, debate on liability provisions in the legislation was basically the same, though a few of the faces were different.

                      The first minor skirmish of the session came Thursday when one of the newest members of the Senate said that previous arguments about the liability provisions of the bill being debated this week were misguided.

                      The legislation, in part, would allow the state to buy and upgrade 61 miles of track from railroad giant CSX Corp. to run commuter trains on – but the deal would also allow CSX to continue to haul freight on the tracks, leading to questions over who would be responsible for accidents on the state tracks involving CSX trains.[Emphasis supplied by FELA FELLA]

                      “This is about allocating insurance risk,” Sen. Joe Negron, R-Stuart, said during a workshop the entire Senate held on SB 2-B. “Even if we did not indemnify CSX, the state is still going to be sued when there’s an accident involving an injury.

                      “Most trespassers are not going to recover,” he continued. “If you trespass onto a railroad track and you get run over, the odds of you recovering are not very high. This is really about who’s paying for insurance, who’s covering deductibles and I think it reaches a fair and balanced distribution between the state of Florida and the freight train company.”

                      Negron said that the structure of the bill would allow for quicker resolution of harm done to Floridians and tourists.

                      “We could have created a complex system where we spend five or ten years litigating blame, because…there’s probably 45 or 50 scenarios that someone could be injured in a train accident involving commuter trains and also freight trains,” he said. “Instead of doing that, we’ve created a shared ‘no-fault’ system where we know in advance who’s responsible for what.”

                      Negron said too much focus has been placed on the possibility that the state could be responsible for an accident caused by errors by CSX’s employees and equipment.

                      “Sometimes the freight train company, CSX, could be responsible when the state makes a mistake,” he said.

                      But the senator widely credited for putting the brakes on SunRail in 2008 and 2009 held stop signs up again Thursday. Sen. Paula Dockery, R-Lakeland, who has parlayed leading the opposition to the proposed Orlando train into a 2010 gubernatorial campaign, said there’s more to it.[Emphasis supplied by FELA FELLA]

                      “It’s not all about insurance,” she said. “We are statutorily indemnifying a freight rail from whom we’ve purchased rail track in perpetuity, and its successor, against any fault, failure and negligence. If…it is all about insurance, why don’t we restructure this deal to state that the state of Florida will pay for the insurance, but CSX needs to indemnify the state of Florida?”

                      In another testy exchange, Dockery also took issue with Sen. Jeremy Ring’s early contention that paying for South Florida’s Tri-Rail system – another large component of the rail package being debated – would create jobs.

                      “How many jobs were created when Tri-Rail went into existence 20 years ago,” Dockery asked Ring, who responded that has Tri-Rail currently has 330 employees and took issue with Dockery’s line of questioning.

                      “All I can tell you is today it is 330,” Ring said. “I wasn’t living here 20 years ago. And I’m not sure what that has to do with the bill. I’d like to know where we’re going with this. Roads cost money as well. This is not a multiple choice quiz.”

                      “It has everything to do with the bill,” Dockery rejoined. “You’re talking about creating jobs.”

                      Despite the early fireworks, the Senate won’t take any votes on the rail bill until early next week, with floor action beginning Monday evening. The House Economic Development Council, which is expected to vote on the plan this evening so the full chamber can take it up, has blocked out more than six hours for the measure Thursday afternoon.

                      COMMENT: This clearly brings to mind the adage: The two things you do not want to watch being made are (1) sausage and (2) laws.
                      Steve Gordon
                      Gordon, Elias & Seely, L.L.P.
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                      • #12
                        More Stories

                        Three More Stories:

                        The rail deal in Tallahassee is mostly about benefiting CSX By Howard Troxler, Times Columnist
                        In Print: Sunday, December 6, 2009
                        Here is the question of the hour, the week, the month and maybe the year in Tallahassee:
                        Why are our governor and the bosses of our Legislature suddenly all hot and insistent that what Florida needs most is ... commuter rail?
                        Why are we suddenly willing to spend something like $1.2 billion of your money, my money, state money, local money, federal money?
                        Why are they suddenly crying that we absolutely must say yes, so we can chase billions more in President Barack Obama's "stimulus" money that they previously despised?
                        Why are they promising the magical creation of hundreds of thousands of jobs (if that promise has not been exaggerated into millions by now) through massive spending?
                        Why have they called the Florida Legislature into an extraordinary session on short notice, demanding that this deal be passed right now?
                        Mass transit. A billion-plus dollars. Stimulus money. Job creation though big spending. Who are they — the Democrats in Congress?
                        Here is the why.
                        It is about benefiting a big, powerful company, namely the CSX Corp., with one of the sweetest sweetheart deals ever proposed in Florida.
                        The rest is window dressing.
                        It is pretty window dressing, no question. It is designed to appease the choo-choo lovers, the urban planners, the idealists. If they back this gravy train now, maybe they get a drop later.
                        There is lots of nice wording in this deal about a "statewide rail policy," about how the state promises to pay for it all down the road. The deal contains a bribe to South Florida for the rail system down there. Hey, we'll even revive our lip service to high-speed rail.
                        But this is mostly about three things:
                        • Paying CSX an outrageous price for 61 miles of track in Orlando to transfer the ownership to the state. Of course, the railroad still gets to use the tracks anyway.
                        • Shifting legal liability from CSX to taxpayers, except in only the most egregious cases of the railroad's negligence.
                        • Allowing CSX dramatic increases in the number of freight trains it can send on another route, with serious impacts on a string of cities such as Dade City, Plant City and Lakeland.
                        For once, however, the deal in the Capitol is not totally rigged. The most rare and precious of events is happening in the Legislature: an honest debate, an open fight.
                        The opposition is led by state Sen. Paula Dockery, R-Lakeland, who is seriously improving her long-shot campaign for governor with her mastery of the issue. The other day she single-handedly cut to ribbons a panel of her colleagues who could only mouth platitudes.
                        "We are paying them," Dockery said, "10 times what their corridor is worth for the honor of owning that corridor. It's now our corridor. So they're introducing freight into our passenger rail corridor. They should be indemnifying us. Not the other way around."
                        We really don't even need to buy the track, Dockery argued, only pay for increasing the capacity.
                        "So why," she asked, "are we costing the taxpayers $641 million when we don't need to buy the track in the first place?"
                        Her colleague, Republican Joe Negron, could only answer lamely: "Any proposed business arrangement has its pros and cons."
                        No kidding.

                        Senators continue to squabble over rail plan

                        The House appeared likely to approve a commuter rail proposal, but the outcome remained far from certain in the Senate.


                        Herald/Times Tallahassee Bureau

                        TALLAHASSEE -- A special session on major rail projects in Central and South Florida continued to sputter Friday -- the result of election-year politics, personality conflicts and over-arching concerns about the legislation's cost and liability.

                        While the House debated the proposal and moved toward expected passage, the fragile Senate coalition grew shakier. Senate President Jeff Atwater spent Friday feverishly wooing back a key Republican senator who defected the day before, and used a procedural move to stack a key Senate committee in the rail proposal's favor.
                        At the same time, Republican Senate leader Alex Diaz de la Portilla of Miami led an effort to submit opinion columns to newspapers throughout the state in hopes of pressuring undecided senators before next week's pivotal vote and of garnering public support for the rail package.
                        ``It's a little disheartening,'' Sen. Paula Dockery, the proposal's chief opponent, said of the maneuverings. ``I haven't complained that all the committees have been stacked against me. But I'm just trying to get information out there, and I don't have this advantage the leadership has.''
                        Dockery twice has successfully led the charge to kill the SunRail plan in Central Florida that is at the center of controversy in the rail legislation, saying it could cost taxpayers more than $1 billion to begin. The current proposal also seeks to boost funding for South Florida's Tri-Rail system by up to $15 million and to establish a new state agency to manage rail. The ultimate goal: Attract $2.5 billion in federal stimulus money for a bullet train.
                        Atwater insists the rail proposal is vital to transforming the state's economy. His allies dismissed rumors Friday that he was threatening Republicans with their committee chairmanships if they vote against it.
                        As word spread Friday that Democratic Sen. Larcenia Bullard was hospitalized following a heart attack and likely will miss the session, Atwater replaced her as vice chair of the Senate Transportation Committee with Sen. Mike Fasano, R-New Port Richey, a rail supporter. That panel will be the bill's first Senate stop Monday.
                        Choosing Fasano instead of another Democrat suggests Atwater is worried about the legislation being scuttled before it even reaches the Senate floor.
                        Also Friday, Senate leaders worked to reverse the surprise defection of Republican Sen. Carey Baker, R-Eustis, who voted for SunRail the past two years, but said Thursday that ``this is not the same bill.''
                        Now he says he is warming back toward the ``yes'' side. Baker is running for agriculture commissioner against U.S. Rep. Adam Putnam of Bartow, a position that makes Baker vulnerable to all sorts of pressure regarding fundraising and endorsements.
                        Even House leaders were recruited Friday to help sway wavering Republicans. Diaz de la Portilla, R-Miami, reached out to Bradenton Rep. Bill Galvano and asked him to submit a pro-rail column to his hometown paper, the Bradenton Herald.
                        Galvano shares a district with Sen. Mike Bennett, who was among the Republicans to defeat SunRail the past two years. He frets about the $1 billion cost and taxpayer liability for private rail carrier CSX once the state buys its tracks.
                        But Friday, Bennett said he's no longer firmly opposed to the rail deal because taxpayers are no longer completely liable for accidents caused by CSX on the SunRail tracks.
                        ``Those of us in quasi-leadership don't want to embarrass the Florida Senate,'' Bennett said. Herald/Times staff writer Steve Bousquet contributed to this report. Shannon Colavecchio can be reached at [email protected]
                        Will legal caveat defeat SunRail?
                        By JIM SAUNDERS
                        Tallahassee Bureau ChiefTALLAHASSEE -- Florida lawmakers dug into a 49-page bill Friday that conjures a future of passenger trains zipping through the state.But for the proposed SunRail commuter-rail system in Central Florida, the bill comes down to this: Will lawmakers go along with a legal agreement that is critical to the project?
                        The agreement would help shield railroad company CSX Transportation from financial liability if one of its freight trains collides with a SunRail commuter train.
                        Without the agreement, CSX won't sell 61 miles of tracks to the state. And without the state owning the tracks, SunRail won't happen.
                        "This is the big deal," said House sponsor Gary Aubuchon, R-Cape Coral, when asked about the liability issue by another lawmaker Friday.
                        Bills that called for similar legal protections died in the Senate in 2008 and spring 2009, jeopardizing the SunRail project that would ultimately stretch from DeLand to Osceola County.
                        But legislative leaders, in a special session that started Thursday, have offered a revised proposal to try to ease concerns about the CSX agreement.
                        Also, as supporters seek to gather enough votes in the 40-member Senate, they have folded the liability issue into a broader package that could eventually lead to high-speed rail and other commuter projects across Florida.
                        Despite the changes, some lawmakers raised questions about the liability issue this week.
                        Sen. Paula Dockery, a Lakeland Republican who led efforts to kill the earlier bills, issued a statement that blasted the agreement.
                        "The caveats in this slapdash legislation do little to protect taxpayers from having to pay for accidents caused by CSX on state-owned tracks," said Dockery, who also is running for governor in 2010.
                        But Bob O'Malley, a CSX vice president, said the agreement would not expose taxpayers to large losses. He said the state would be covered by a $200 million insurance policy that CSX would help fund.
                        House members spent about three hours Friday discussing the bill and are poised to approve it Monday. The Senate could vote Tuesday or Wednesday, though it remains unclear whether the measure has enough support to pass.
                        Debates about SunRail during the past two years have veered into a wide range of issues, including the billion-dollar cost that is expected to be split between state, local and federal governments.
                        But the only part of the project that lawmakers need to approve for SunRail to move forward is the liability agreement with CSX.
                        Under the SunRail plan, the state would pay $432 million to CSX to buy the Central Florida tracks, with assurances that CSX would plow money back into upgrading its lines in the state. Lawmakers do not have to approve money for the purchase because it is already included in state transportation-funding plans.
                        While the state would own the 61 miles for the commuter system, CSX would continue to use the route for freight trains.
                        CSX has long made the deal contingent on receiving legal protections if freight and commuter trains collide.
                        O'Malley said adding commuter trains to the track would expose CSX to lawsuits that it does not currently face. He also said CSX could become a target for attorneys, because state law limits the amount of damages that a government can be forced to pay -- a concept known as sovereign immunity.
                        O'Malley said it "would be irresponsible for us to expose the company to that level of risk."
                        A key part of the agreement would shield CSX from having to pay damages to commuter-rail passengers after a collision, even if CSX was at fault. CSX would be responsible for injuries or losses sustained by its employees or property.
                        Supporters describe the arrangement as a "no-fault" system.
                        One of the revisions in the new bill would force CSX to pay up to $10 million if an accident is caused by "willful misconduct" of a company employee or if punitive damages are awarded against the company.
                        That is designed to ease concerns, for example, that a CSX employee could become intoxicated and cause a crash with a commuter train. Without the revision, CSX would not have been financially responsible for the state's losses or injuries to [email protected]
                        Steve Gordon
                        Gordon, Elias & Seely, L.L.P.
                        FELA Lawyer
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                        Serving Injured Railroad Employees Nationwide
                        Call for a FELA Lawyer 24/7/365


                        • #13
                          The End Game

                          Tracks Cleared for SunRail with Special Session Complete

                          A day after the special session rail package arrived at its destination earlier than expected, it remained unclear how quickly the controversial sale of existing tracks for the proposal Orlando SunRail commuter train would get rolling.State transportation officials said the legislation had one more stop before it authorized them to buy 61 miles of freight tracks to begin construction of the Deland to Poinciana commuter rail in Orlando.
                          “We don’t have a hard and fast date,” Florida Department of Transportation spokesman Dick Kane told the News Service of Florida Wednesday. “The bill has to be signed into law first. Then we would look at when we would close. We didn’t have a time frame.”
                          Gov. Charlie Crist’s office said Wednesday that it had received the rail bill. The governor, a vocal rail supporter, has until Dec. 24 to sign it.
                          Perhaps to ease the bill’s passage through the gridlocked Senate, backers sought to downplay the aspects of the three-part legislation that allow for the development of SunRail, which became controversial over a two-year fight to pull the train through the chamber. But a key backer of the train said after the final votes that it was the last piece of the SunRail puzzle.
                          “We had the funding set aside for SunRail some time ago,” Orlando Mayor Buddy Dyer told reporters minutes after the Senate approved what he has long called the city’s top legislative priority. “The last piece to move forward on the acquisition of the right-of-way was to finalize language that established liability in the event of accident somewhere on the line and also delegate authority to the department and eventually a SunRail commission to purchase liability insurance. So that was a big piece.”
                          Derailed in the Senate in 2008 and again earlier this year, the liability agreement for SunRail that ended up composing a key portion of the special session rail package was a “no fault” indemnification agreement that would have the state and CSX each responsible for its own equipment, workers and passengers no matter who causes an accident and third party damage being split.
                          The bill also contains about $15 million for cash-strapped Tri-Rail in central Florida and creates at least two statewide rail panels.
                          Dyer, who also chairs the Central Florida Rail Commission, said that a decision on applications for stimulus money – which spurred the special session in the first place – would come early next year. Alongside applications for $2.6 billion for the first leg of a long-proposed Tampa-Orlando-Miami and $70 million for Atlantic Coast Amtrak service was $432 million for SunRail, which Dyer was crucial.
                          He also said that purchasing the tracks from CSX was not far down the line for SunRail.
                          “We anticipate in January or February that the federal government will let us know about the allocation of (Federal Railroad Authority) stimulus funding,” he said. “We’ll know whether we have a piece of that, but (the next step) is to move forward with the right of way acquisition, and when we do that, then we’re able to enter into a full funding agreement with the Federal Transportation Administration and we start work.”
                          SunRail is projected to be $1.2 billion, with plans calling for $641 million to be paid to CSX for use of the track and an additional $600 million to build stations and purchase equipment. Backers say SunRail will create 13,000 jobs and generate $4.6 billion for the construction sector over 20 years.
                          Supporters have also said the train would spur 113,000 construction projects within a half-mile range of its 17 stations and remove the number of cars that fill one lane of Interstate 4 during weekday rush hours. Construction plans now call for the trains to begin rolling in 2012 on the first phase of SunRail, 31-miles between DeBary and Sand Lake Road in Orange County.
                          The remainder of the line would be on line in 2013, supporters have said.
                          As lawmakers debated the sweeping rail package, much was made about the correlation between the creation of SunRail and the state’s high speed rail plans, especially in the eyes of the federal government. But Senate President Jeff Atwater cautioned after the vote Tuesday that passing the rail did not mean stimulus dollars would automatically roll in.
                          “The bill wasn’t that we had to have a bullet train when it was over,” Atwater told reporters. “I think we made that clear in the dialogue. This was about can we create a framework where the partnerships (between private companies and government) can develop locally and maybe our federal partners will say it’s time to support Florida and some if its longer term goals.”
                          Just as quickly though, Atwater said passing the rail bill put the state a lot closer to winning the stimulus money.
                          “But in Washington they made it very clear…if we ever decide that Florida is right for high speed with this grant, we’re not going to put a bunch of parking garages at every stop,” he said. “You build connectivity.”
                          And the rail bill’s passage was already reverberating in Washington. Sen. Bill Nelson’s office was touting it as a reason the state was being granted $40 million to “jumpstart a rail system that will serve commuters in Central Florida” by Congressional budget leaders in a broad transportation, housing and military expenditure bill.
                          “Talk about back-to-back great news for Floridians who are tired of traffic jams – this is it,” Nelson, who had long urged the Legislature to approve rail project, said in a statement. “The miracle of miracles has happened.”
                          Nelson’s office said the Washington transportation bill also included $4 million for the expansion of Miami’s Metrorail and $1.7 million for a proposed light rail in Tampa.


                          COMMENT: This is good for Florida and good for CSX. The liability issue "compromise" makes sense and is not one-sided.

                          Steve Gordon
                          FELA Lawyer
                          Steve Gordon
                          Gordon, Elias & Seely, L.L.P.
                          FELA Lawyer
                          FELA Lawyer Blog
                          Serving Injured Railroad Employees Nationwide
                          Call for a FELA Lawyer 24/7/365