Some years ago, a spate of books about the high cost of dying – more specifically, burial – stimulated the enactment of federal regulation of the funeral industry. Unfortunately, industry-wide standards had been widely abused and there was an absence of self-regulation. The major thesis of the books was that funeral directors were taking undue advantage of grieving families in selling them services they didn’t need, may not have chosen during more rationale times, and would not have otherwise paid inflated prices. In essence, by definition the funeral market does not present a “level playing field” between seller and buyer and thus, public interference was deemed to be in the interest of society.

Railroad claim agents are certainly not analogous to funeral directors, but in one way, they are similar. They both interact with grieving families. Following some railroad grade-crossing accidents, claim agents have been known to approach families of injured or dead motorists in order to avoid potential litigation through a “quick-strike” financial settlement. The timing of these contacts can be alarming. Stories abound about railroad agents visiting hospitals, places of employment and family residences – in many cases, with no previous contact with the families and/or injured parties – and at least in some cases, prior to the funeral. Sometimes railroad claim agents have offered to pay for funerals in exchange for a signed release from liability. And in other cases, relatively modest settlements have been proposed with an accompanying message that the railroad certainly did not cause the accident and thus, would not be found to be at fault in a costly judicial proceeding. As a claim agent may explain to a grieving family, trains always have the right-of-way at railroad crossings, so that accidents are by definition the fault of motorists and pedestrians.

Although there are numerous examples of what might aptly be termed “bad behavior” on the part of railroad claim agents, a case that is particularly egregious provides an illustrative of a variety of deficiencies. In September of 1999, Stuart Curtis and Dannen Latherow were struck by a passenger train at a gated crossing in McLean, Illinois. It was immediately alleged by the railroad that the teenage boys had encircled the depressed gates and this accusation was printed in the local newspaper. The boy’s bodies were taken to a coroner, tested for substance abuse, autopsied, and not released for virtually a full day. The basis for the full autopsy was the thought that since the boys were at fault for the accident, the driver may have been affected by some mental or physical abnormality. The boy’s families were dumbfounded. How could these responsible, religious, honor roll students who had always been cautious drivers, be so irresponsible? It just didn’t make sense.

Stuart’s mother, Dorothy Curtis, described some of what happened soon after the accident:

The day after the accident, the railroad called to inform us that it would pay for Stuart’s funeral. However, the funeral director informed us that he had not been contacted by the railroad; thought that the offer was strange; and warned us not to sign anything. The night of the funerals, we received a call from the coroner who was extremely angry. He received a tip that experimental cameras at the crossing, in the railroad’s possession, revealed that the boys were not at fault in that the gates failed to activate. The next morning, as our two families gathered, we had an unannounced visitor – a railroad claim agent who said that he had worked for the railroad for 30 years, had never seen an accident in which the railroad was at fault, but still wanted to work something out with the families. Since we were not supposed to know about the camera tapes and what they revealed, the railroad most likely felt it was to its advantage to have their agent come to our home before we gained that knowledge. We eventually learned that the railroad knew that the accident was its fault before the claims’ agent visited us, and long before it admitted its guilt as a condition of a settlement. About six months after the accident, we met with the railroad’s attorneys in a judge’s chambers. The same claim agent was also there and made some condescending comment about the size of our farm – inferring that we were moneyed people. His demeanor was at best, offensive.

Problems with the claim agent’s approach in the Latherow-Curtis case are obvious. Not only did the railroad have information not available to the families, it withheld the information when approaching the families. Furthermore, the agent was insensitive in showing up at the family’s house without first calling, at an extremely poor time, and with rhetoric that was misleading and cold. Fortunately for the two families, they had prior knowledge of the cause of the accident, and a family member who was an attorney was at their house when the claim agent visited. Many other families would not be expected to be in such a position.

Railroad claim agents perform necessary and understandable functions. It is not only desirable for railroads and claimants to reach fair and equitable settlements, claim agents can serve as comfortable conduits between accident victims and railroad attorneys. But in the quest of fairness and just plain old common decency, claim agents – and in fact, railroads – should be sensitive to the vulnerabilities of grieving families. Such a sensitivity requires proper training and a compassionate personality. Based on depositions of claim agents in a number of grade-crossing judicial proceedings, it appears that training is almost non-existent and that personality needs are wanting. Furthermore, there is no evidence that railroads have developed proper standards for claims’ agent to visit grieving families. And finally, it is simply wrong to perform autopsies on motorists on railroad allegations of irresponsible driving, without additional evidence and/or approval from the victims’ families.

Unless railroads do a better job of selecting claim agents, properly training them, and providing them with an adequate set of standards, the subject of claim-agent performance may be ripe for government intervention and regulation. This is a subject that should be addressed by the Federal Railroad Administration – the agency that establishes and enforces operating and safety standards for the railroad industry. The subject may also warrant analysis by State Departments of Transportation. Someone – federal and/or State government should step forward and be an ombudsman for victims of grade-crossing accidents in this country. The playing field for railroad claim agents and grieving families is simply imbalanced and requires public intervention.