Union Pacific suit settled

Cokeville – After nearly a year since a Union Pacific (UP) train hit and injured or killed 226 cows belonging to Tim and Matthew Teichert of Teichert Brothers, LLC, the case has been settled out of court.
    The loss of pregnant cows resulted in a claimed loss of $313,955.64, according to the Order on Cross Motions for Summary Judgment issued by the U.S. District Court Judge Alan B. Johnson on Oct. 28. Because of UP’s denial of the claim, Teichert Brothers was unable to buy replacement pregnant cows and thus also claimed the loss of the 2011 calf crop.
    “There were motions for summary judgment filed by both sides,” says Hank Bailey, attorney at Bailey, Stock and Harmon in Cheyenne, explaining that a motion for summary judgment says that there are not issues of fact, but rather a question of law for the court to decide. “There was no dispute about what happened. The railroad was certain it was right about what the law said, and we were pretty sure we were right.”
    After considering both the motions and the numerous briefs that were filed, Judge Johnson ruled in favor of Teichert Brothers.
    “Judge Johnson decided that our view of the law was correct,” commented Bailey. “He made it pretty clear that he didn’t accept their argument.”
    “Nowhere in its briefs does Defendant (Union Pacific Railroad Company) dispute that the condition of its fencing failed to meet Wyoming Department of Transportation standards,” wrote Judge Johnson in the document. “In deposition, Defendant’s own agents variously admitted that ‘the fence looked pretty crappy,’ ‘the fence looked like it was in serious need of some maintenance,’ and ‘that’s not right. Nothing’s going to last for that… many years.’”
    UP agents also admitted that the company did not inspect fences or instruct train employees to inspect and maintain fences, leading to the court conclusion that the breach of statute 37-9-304 was not in dispute.
    Wyoming Statute 37-9-304 dictates the responsibility of railroads to maintain fences and effectively keep cattle off tracks. The following statute, 37-9-305, establishes liability on the part of the railroad for loss of any livestock.
    The Wyoming District Court found that Union Pacific did not rebut or seem capable of rebutting Teichert Brothers’ motion. After granting in part, with respect to liability, the motion for summary judgment, Teichert Brothers, LLC were required to submit documentation of their losses and expenses, including livestock valuations and proof of reasonable attorney fees.
    Tim Teichert adds that an agreement was reached on Nov. 18 without the necessity of going to trial.
    “We were basically going to court over the damages. On the Friday before our court date, we agreed on a confidential settlement,” says Teichert.
    Though Teichert Brothers prevailed, Tim Teichert notes that none of the fences have been fixed, saying, “I’ve had cows out since then, and I can’t get the railroads to fix any fences.”
    “There is a provision in the statute that says if a fence is not in compliance with the law, the railroad can be fined up to $750 a day for a non-compliant fence,” explains Bailey. “Either the state Department of Transportation or county officials will be asked to look at the fence and see whether or not they think it is in compliance, and if it isn’t they may pursue action to fix the fence or pay the fine.”
    “I will visit with the county commissioners to see if we can’t get something done,” says Teichert.
    “Every single railroad employee that testified said the fence was in bad condition and needed repair. The only question is if the railroad will get out there and fix it,” says Bailey, adding that he believes the fence will be fixed when the county or state approaches the railroad.
    “I’ll try to get it taken care of as soon as I can,” says Teichert, “but the fence is still their responsibility.”
    Bailey emphasized that the significance of this case comes with the order Judge Johnson made. He notes that there aren’t a lot of cases involving the railroad in Wyoming because they typically pay for animals that are killed.
    “Judge Johnson’s order was exactly correct, and it lays the issue out pretty clearly,” explains Bailey. “I have never been involved in a case where this many animals were killed, and I suspect the railroad has not, either, so in that sense we were plowing new ground.”
    Bailey adds, “Now we have an important decision by Judge Johnson that should send the message that Wyoming statutes have to be followed.”
    Saige Albert is editor of the Wyoming Livestock Roundup and can be reached at saige@wylr.net.