WE ARE PLAINTIFF'S LAWYERS THAT KNOW HOW TO BUILD CASES

A plaintiff’s lawyer looks at a case differently than a defense lawyer.  I was a prosecutor in Philadelphia before I started my civil practice and know that building a case as a prosecutor or plaintiff requires a different skill set than the skill set necessary to defend the case.  Defending a claim requires an attorney to break down liability and damages claims rather than build these claims. This is one reason insurance companies engage different counsel to defend claims and others to handle plaintiff’s subrogation claims.  Additionally, because we have been representing rail carriers for decades, we are familiar with the relevant terminology, departments and types of available damages necessary to pursue expenditure recovery claims.  This knowledge base dramatically reduces the time in house counsel and / or risk management personnel need to devote to management of these matters. 

WE IDENTIFY DAMAGES DEFENSE ATTORNEYS MAY NOT BE AWARE OF OR MAY OVERLOOK

Other firms lack specialization in the area of identifying railroad damages and are unable to identify challenges or opportunities for recovery.  KCM regularly identifies damage components which were not included in the original invoices resulting in increased recoveries to its railroad clients (totaling hundreds of thousands of dollars.)

  1. KCM identified over $1,100,000 in additional damages not included in a claim related to a derailment in New York.  KCM evaluated the original invoice, identified the missing damages (damage to a tamper and a regulator), secured evidence to support these damages (both internal and through non-party investigation) and successfully advocated for the recovery of these damages. 
  2. KCM regularly increases expenditure recovery claims by identifying train delay and loss of use damages, among other more nuanced recovery possibilities.  Including such damages in a claim demand provides added leverage in settlement negotiations.  And, unlike other firms, we know the witnesses and documents necessary to support these charges, including the support for burden rates on railroad labor charges.

WE HAVE WORKING RELATIONSHIPS WITH AN ARRAY OF EXPERTS KNOWLEDGEABLE IN AREAS PERTINENT TO RAILROAD

The expenditure recovery cases we handle often require engaging experts in disciplines which are not normally implicated in FELA / PI defense cases.  For example, while sometimes an expert fluent in train handling and brake application is required (and we have worked with just about all of them), it is equally likely that an expert in a different area such as construction design metallurgy or forensic accounting will be necessary.  We have developed, and worked with, experts in the following disciplines:


  • Forensic Structural Engineering
  • Construction Project Management
  • Geotechnical Engineering
  • Hydrodynamics and Hydrology – Scour Evaluation and Hydraulic Modeling
  • Train Handling/Operations
  • Causation of Rail Grade Crossing Accidents 
  • Track Structure – Maintenance of Way, FRA Compliance
  • Mechanical Damages - Locomotive and Railcars
  • Maritime Valuation of Vessels and Tow (necessary due to potential application of admiralty limitation of liability)
  • Maritime Navigation (Brown-water – Rivers)
  • Forensic Accounting
  • Freight Loading and Securement (AAR Rules Compliance)
  • Environmental Emergency Response and Remediation
  • Insurance Bad Faith
  • Materials / Metallurgy / Solid Mechanics 
  • Products Liability 

WE HANDLE WORK ACROSS ENTIRE RAIL NETWORKS NATIONALLY

Because KCM handles matters nationally, clients benefit from not having to pay multiple counsel to learn the variety of areas of the law implicated in expenditure recovery matters.  We have been handling matters across our Class 1 rail carrier clients’ networks for decades.  KCM attorneys are admitted to practice before twenty-seven federal district courts and seven circuit courts across the country.  When pro hac vice admission is required, we have developed a network of local counsel who handle this administrative filing. They understand their limited role in the litigation to ensure minimal additional costs are incurred. To the extent that a client has established relationships with their own local counsel, KCM would be receptive to using them in this capacity.

WE HAVE SIGNIFICANT EXPERIENCE SECURING RECOVERIES IN THE FOLLOWING AREAS AMONG OTHERS:

  • Claims against railroad vendors for various breaches of contract
  • Accidents involving railroad signal equipment or infrastructure of any type
  • Slope failures of above grade or subgrade landowners adjacent to right of way
  • Water main breaks 
  • Retention pond failures
  • Barge/vessel allisions with railroad owned rail bridges / protection cells / piers
  • Damage to railroad bridges caused by construction activity
  • Derailments/accidents caused by third parties

                                          -Grade crossing accidents (multiple)

                                          -Misaligned switch – by another railroad or industry

                                          -Improper loading / overloading of railcars / application of AAR Rules

  • Environmental contamination caused by third parties
  • Any other claim for damages caused to railroad by negligence or breach of contract 
  • Anytime a Rail Equipment Accident/Incident Report (FRA 6180.54) includes a cause code which was not related to railroad error

WE ARE EFFICIENT

Controlling costs for each file is a primary concern of KCM in all collection matters.  We handle collection cases ranging from $20,000 in damage to a signal box to multi-million dollar construction claims.  As such, one size does not fit all for handling these matters.  KCM screens every incoming file placed with the firm to determine recoverability.  KCM staffs each case with the most efficient staffing possible, consistent with adequate representation.  This usually consists of one junior attorney and a more senior attorney performing an oversight and review function.  We cap experts’ fees to prevent excessive billing and comply with all outside counsel guidelines including securing authority before any significant expenditure is made.  We also employ the latest technology to control costs, such as taking depositions by remote video link. Our staff and attorneys are also fluent with Relativity and many other document management programs.

WE SUPPLY MONTHLY RECOVERY REPORTS WHICH HIGHLIGHT THE RESULTS OF GLOBAL RECOVERY EFFORTS

We know that proper reporting on progress is essential for management to oversee the work being performed and the cost of that work.  Presenting the results of recovery efforts in one PowerPoint slide or spreadsheet can be an effective way to communicate efforts to recoup damages caused by third parties.  We prepare monthly reports on recoveries which could be tailored to include additional metrics and data as required.