Car v. Train – Train Won

After the Amtrak train collided with a truck pulling a trailer there were several lawsuits involving injuries on the train and the widow of the truck driver, Bobby Jenkins who died in the crash. The crash occurred when, despite warning signs, Jenkins failed to stop when the private road he was driving crossed the railroad tracks. In Progressive Paloverde Insurance Company v. BJ Trucking Earthmover, LLC. Plaintiff, et al, No. 21-30379, United States Court of Appeals, Fifth Circuit (July 15, 2022) established who caused the accident and the resulting injuries.



On the day of the accident, Jenkins was hauling sand in southeast Louisiana. He was driving a semi-truck pulling a garbage cart. Both the truck and trailer were owned by BJ Trucking Earthmover, LLC (“BJ Trucking”) of which Jenkins was the sole member. The twenty-seven tons of sand it carries came from the Fluker Pit located on a lease from Fluker Farms, Inc. and Industrial Aggregates of the Florida Parishes, LLC (“Industrial Aggregates”). The private road on which Jenkins was driving was allegedly owned by Kent Enterprises, LLC (“Kent”).

Jenkins attempted to cross the tracks at DOT#930094V. Crossings are marked with two stop signs and two “money”. Illinois Central Railroad, Co. (“IC/CN”) owns the track on which the Amtrak train was operating at the time. The train was traveling at a speed limit of 79 kilometers per hour.

Jenkins did not slow down or stop at the crossing as he approached. Video surveillance by the train confirmed that as it approached the crossing, Bobby Jenkins ignored a stop sign and crossbucks and did not slow down. Jenkins went into the crosswalk, and he and the car were hit by a train.

Jenkins’ widow, Katy Jenkins, filed the first lawsuit in federal court. The following articles were included.

Progressive Paloverde Insurance Company (“Progressive”) insured the car that Jenkins was driving. Heck Industries, Inc. (“Heck”) was said to be Jenkins’ employer at the time of the accident, but Heck insists that Jenkins was working as an independent contractor.

Heck provided the defense and indemnification to Progressive because Heck was named as an additional insured on Jenkins’ policy. Gray Insurance Co. (“Gray”) Heck’s insurance, but says that its policy provides more coverage for Heck. Gray argues that the Progressive agenda should come first. Progressive filed a complaint to determine whether (Progressive) owes any defense or restitution to any of the named defendants.

In several orders granting summary judgment, the district court concluded:

  • The only reason for the collision between the car driven by Bobby Jenkins, and driven by Bobby Jenkins is [BJ Trucking]it was the negligence of Bobby Jenkins and [BJ Trucking];
  • Heck he wasn’t Bobby Jenkins’ boss either [BJ Trucking];
  • Progressive’s auto insurance did not cover the 1998 Peterbilt truck driven by Bobby Jenkins at the time of the collision; and
  • Industrial Aggregates has not breached any duty to maintain the railroad crossing.


  • Did the district court err in granting summary judgment that Jenkins was responsible for the accident?
  • Did the district court err in holding that Jenkins was not Heck’s employee?
  • Did the district court err in holding that Progressive’s non-driving policy precluded coverage of the accident?


The injured persons who worked on the train brought their claims under the Federal Employers Liability Act (“FELA”). The FELA provides the only remedy to a railroad employee engaged in interstate commerce whose injuries result from the railroad’s negligence.

A grant of summary judgment to a defendant railroad is appropriate only when there is no substantial evidence to support a jury verdict in favor of the plaintiff.

Under Louisiana law, a motorist approaching a railroad crossing that has a stop sign must “stop” and cannot proceed until it is safe to do so. When a crossing has been marked with a cross, such a driver must listen and look in all directions on the track to see if he is approaching any train that is approaching by signals indicating the approach of the train. They should give way to any approaching train and then proceed only cautiously and after determining that it is safe to board. A driver’s failure to do so has legal consequences.

There was no evidence of a defect in the crossing. Amtrak has met this challenge by providing a pass that can be passed by a driver who is paying close attention. This is especially true in this case because Jenkins knew how to cross: He crossed almost every day for several years.


Employers are responsible for the damages of their employees, but the principal cannot be held liable for the actions of an independent contractor. Jenkins was not Heck’s employee. Heck, for that reason, he has no reason for Jenkins’ actions.

The question of whether an actor is an employee or an independent contractor can be resolved legally if the facts are not disputed. The controlling element that differentiates an employee from an independent contractor is whether the employee has the right to control the methods and processes by which the individual performed the work. It doesn’t matter how the monitoring and control is done; the important question is whether, from the nature of the relationship, the right to do so exists.

Heck didn’t have any control over how Jenkins ended his career. Heck Paying for Jenkins for every version. Jenkins controlled his schedule, and either he or Heck could end the relationship at any time. The district court is correct that Heck did not exercise – and did not have the ability to exercise – control over the methods and means by which Jenkins completed his work.


Jenkins’ policy with Progressive called Heck as additional insurance. Heck pleaded that Progressive was “obliged to defend, indemnify, and indemnify Heck” for the accident. However, the district court agreed with Progressive that its non-driving waiver barred Heck’s coverage.

At the time of the accident, Jenkins was carrying twenty-seven tons of sand. The non-driving exception applies because Jenkins was transporting goods when the collision occurred.

The district court was correct in holding that the Progressive Act did not cover Jenkins’ truck or trailer at the time of the accident because those trucks were undoubtedly carrying goods. And, that work was apparently removed from publication.

Neither party to this complaint has standing to challenge the dismissal of Industrial Aggregates or Gray. Therefore, their dismissal must stand. Accordingly, Kent is effectively dismissed from this appeal by agreement.

The trial court did not err.

Mr. Jenkins reduced the insurance premiums he purchased to protect others who might be injured while driving his tractor and found a policy that did not include coverage while hauling. He was obviously careless and his carelessness led to his death and injuries to those on board and the ship itself. There is no information for anyone else and finding out that he was the only one who caused the accident and the injuries to the injured can only be taken from his place. Sadly for the injured who would not have been harmed if they had stopped at the crossing.

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Barry Zalma, Esq., CFE, now limits his practice to working as an insurance consultant specializing in insurance coverage, insurance litigation, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He has practiced law in California for over 44 years as an insurance and claims attorney and over 54 years in the insurance business. He can be reached at

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