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(The following story by Bill Thompson appeared on the Gainesville Sun website on March 30, 2009.)

OCALA, Fla. — Seven years ago, a speeding northbound Amtrak passenger train derailed in Putnam County, killing four people and injuring more than 140 of the nearly 500 riders on board.

Investigators determined the April 2002 accident was caused by shoddy maintenance and improper stabilization of a section of the tracks, owned by CSX Transportation.

As a result, Amtrak paid $12 million in damages related to that crash near Crescent City, according to an October 2004 article by The New York Times. The article noted that some claims were still outstanding two and a half years later.

The Times also reported that CSX did not pay one dime, even though the multibillion-dollar company was deemed responsible. Instead Amtrak, which received more than $1 billion in government subsidies, bore the full financial burden for the mishap because Amtrak had agreed to shield CSX from liability in exchange for the right to use the freight hauler’s tracks, a policy known as indemnification.

In fact, The Times found, Amtrak had doled out more than $186 million in accident claims over 20 years because of its indemnification agreements with CSX and other freight-train companies around the country – even though those accidents were not Amtrak’s fault.

The state of Florida is poised to do the same thing.

A bill now being considered in Tallahassee would make the state “solely responsible” for compensating victims of almost all accidents along 61 miles of track that the state wants to use for the Deland-to-Orlando commuter rail known as SunRail.

That bill also would assemble the framework for future deals the FDOT might make with freight operators to introduce commuter rail to other metropolitan areas such as Tampa and Jacksonville. It has passed two state Senate committees and will receive further consideration from state senators this week.

Although SunRail’s opponents tout scenarios such as the Crescent City tragedy as consequences that taxpayers can ill afford, the measure’s proponents suggest such fears are overblown.

The state’s plan, commuter rail advocates say, is little more than the “no-fault” insurance carried by every motorist in Florida.

In addition, they say, Central Florida is just conforming to terms found in other parts of the country. In South Florida, for example, the FDOT has likewise immunized the freight company in case of certain accidents on the TriRail commuter line.

Rather than worrying about letting CSX off the hook for an accident, proponents argue, the public should worry about letting CSX walk away from the commuter rail deal.

The liability protection is necessary, advocates maintain, because the state cannot afford to build its own commuter tracks.

And defeating this provision will prove costly in other ways: thousands of jobs eliminated, millions of dollars of infrastructure improvements and federal aid scuttled, and the prospect of relieving congestion along Interstate 4 forever killed.

Under the agreement, CSX will shift many of its freight trains along the proposed commuter line between DeLand and Poinciana, near Kissimmee, to tracks running through communities in the heart of the state, including Gainesville and Ocala.

CSX, however, may continue to operate its freight trains on the commuter tracks during those trains’ off-hours.

One clear scenario where taxpayers would not be held liable in an accident is when only one train – a privately owned freight train – is involved.

Similarly, the FDOT will assume responsibility for accidents and damages that involve just a commuter-rail train.

If a commuter train and a freight train are involved in a mishap, taxpayers would pay for the damages for everyone except the freight hauler and its employees, even if they are to blame.

Under the bill, any freight train operator, including CSX, that travels on SunRail’s tracks is protected “against any liability, cost and expense” related to accidents, “regardless of circumstances or cause.” The freight train company would only be responsible for its people and equipment in such an instance.

And while the bill says the freight company and the state would split the cost of damages outside the rail corridor, opponents contend the corridor is so broadly defined in the measure that the language is meaningless.

Alexis Yarbrough, the FDOT’s general counsel, defended the provisions as the being the same as those the state drew up for TriRail, which has served the Miami area since 1989.

She also pointed out that CSX and other freight companies and the state will share responsibility for damages from accidents outside commuter rail corridors.

Moreover, CSX seeks this indemnification to create a “level playing field,” Yarbrough said, because FDOT is utilizing the tracks for people who wouldn’t otherwise be on them.

And in case of an accident the language of the bill helps speed up legal wrangling that could be drawn out by determining who is responsible for paying what, Yarbrough said.

Still, the Crescent City tragedy echoes one of a number of what-if incidents developed by state Sen. Paula Dockery, the most outspoken critic of the CSX agreement in the Legislature.

Dockery, R-Lakeland, created that list to highlight the state’s vulnerability – an issue she utilized last year to sink the commuter rail plan.

This year, however, she lost a key ally because commuter-rail proponents dropped a key provision.

The state’s trial lawyers had supported Dockery a year ago because the FDOT, which seeks to hire a contractor to run the commuter rail, wanted to put those workers under the state’s sovereign-immunity umbrella.

Sovereign immunity is an age-old legal principle that says the government cannot be sued for its acts.

Florida does allow that in some cases, but under state law victims can only recoup $100,000 per person and $200,000 for each incident.

The Florida Justice Association, the lobbying arm of the trial lawyers, is officially neutral on the SunRail legislation this year because sovereign immunity was stripped, said Paul Jess, the group’s general counsel.

Jess said the group eased off once lawmakers understood their concerns that employees of a private, for-profit company should not be afforded the same protection for negligence as state employees.

The bill does contain a provision for the state to carry a $200 million insurance policy to protect against accidents. It will cost taxpayers an estimated $2 million a year.

In the Florida House, which is expected to easily pass the commuter-rail bill, Speaker Larry Cretul, R-Ocala, recently said since the removal of the sovereign immunity provision seemed to mollify the trial lawyers, the bill seems better than last year’s.

Sen. Lee Constantine, an Altamonte Springs Republican who co-sponsored the bill, expressed frustration with the warnings over the liability language.

Calling it the “latest, greatest” excuse offered by opponents to reject the FDOT-CSX deal, Constantine maintained that he had successfully addressed other concerns – such as the sovereign immunity plank and concerns by Lakeland residents about increased freight train traffic through their community – and still had not gained any votes toward passage of his bill.

And, he noted of the liability clause, “If I solve that issue, I still wouldn’t gain one vote.”

Constantine said killing the bill would threaten a “tremendous” economic development and employment opportunity, while jeopardizing a cost-effective alternative to adding more lanes to I-4.

“We’ve had TriRail for 20 years under the same conditions, and it hasn’t caused a problem down there,” he said. “We have to do this indemnity, or they will walk. I don’t see what’s the big hoopla.”

Others do.

State Chief Financial Officer Alex Sink remains troubled by the liability provision and the state’s exposure in a mishap. She told reporters at a recent appearance in Lakeland that she is concerned that CSX would be excused from all risk and that the state would not be able to find an insurer willing to underwrite a $200 million policy.

Beyond those points, Dockery argues that the state is agreeing to forever indemnify CSX, and any company that might buy their tracks later, with no guarantee commuter rail will ever exist.

“It goes to who is injured, and who is injured is on us, for whatever reason – unless they are on the freight train,” Dockery said. “We’re going to absolve all the liability from CSX.”