‘Unconscionable’: Amtrak crash victims checked box that bars them from suing, BNSF says
Victims of a deadly Amtrak crash in rural Missouri cannot sue for damages because they checked a required box acknowledging a lengthy set of terms and conditions when buying tickets, BNSF Railway contends.
The Fort Worth, Texas-based freight railroad filed a lawsuit in federal court on Tuesday against some of the passengers who were injured and heirs of those who died in a June 27 crash at a rural railroad crossing near Mendon, Missouri.
BNSF seeks a preliminary injunction forcing the victims to arbitrate with the railroad rather than proceed with their lawsuits in court. The railroad is also asking a federal judge to halt lawsuits pending in Missouri state courts.
Surviving passengers and heirs of those who died began filing lawsuits shortly after the crash, which killed three passengers, all from the Kansas City area, and injured dozens more. The train was traveling between Los Angeles and Chicago on the Southwest Chief route when it hit a dump truck obstructing the track at Chariton County’s Porche Prairie Avenue crossing that lacked cross arms, bells or lights. The truck driver was also killed.
The Amtrak train was traveling on rails owned and operated by BNSF, which had been warned for years about the danger present at the steep crossing.
The lawsuit alleges that passengers who purchase Amtrak tickets must click a box agreeing to the company’s terms and conditions. The full terms are more than 20,000 words long and include a binding arbitration agreement that requires passengers to resolve disputes with the railroad through arbitration rather than the courts. BNSF argues that those terms also apply to the freight railroad.
“BNSF is a host railroad to which Amtrak owes indemnity, and, therefore, BNSF is expressly entitled to enforce the Arbitration Agreement,” the railroad argued in its lawsuit.
In support of their legal arguments, lawyers for BNSF included as an exhibit a photographic example of the agreement, containing the two-sentence statement referencing — in the same breath — the “binding arbitration agreement and rules regarding COVID travel.”
Arbitration is a commonly used tool to settle disputes with private arbitrators rather than proceeding with more costly litigation through public courts.
Among those named as defendants are the families of the three Kansas City area passengers who died in the crash: Kim Holsapple, Rachelle Cook and Binh Phan. It remained unclear Wednesday whether BNSF intended to apply the same argument with all current plaintiffs or any future ones.
Officials with BNSF and Amtrak declined to comment on the lawsuit.
Kansas City attorney Grant Davis, who represents more than 70 plaintiffs suing the railroads, said BNSF’s argument was “unconscionable.”
“The Missouri Constitution and the U.S. Constitution gives everyone the right to trial by jury,” he told The Star. “They are trying to take that away in this case. We believe they are wrong under the law and under the facts of these cases.”
On Wednesday, a state court appointed Davis as the lead plaintiff’s attorney. Multiple lawsuits are pending surrounding the court, but a judge has consolidated the plaintiff cases for the purposes of discovery.
Davis said BNSF is not named in Amtrak’s arbitration agreement. He does not believe any of his clients agreed to an arbitration agreement as BNSF claims.
“It’s very disturbing for one railroad to sue these victims to try to take advantage of a very questionable alleged arbitration agreement concerning a different railroad,” he said.
The civil petition comes nearly three months after BNSF Railway opened another civil case, filed jointly with Amtrak in federal court, in which the company blames Billy Barton II, a truck driver for M.S. Contracting, for causing the crash. Lawyers for the company have argued Barton operated the truck in a negligent and careless manner, contending the train was “clearly visible” and Barton failed to yield its right of way.
This story was originally published September 22, 2022 at 5:00 AM.
