Railroad Q&A with Ben Dunlap

This month we are reflecting on and celebrating the remarkable 142-year history that Nauman Smith has representing Pennsylvania railroads. The railroad industry and evolution of transportation are integral parts to our past, present, and future. I sat down with Managing Partner, Ben Dunlap, to discuss his experiences within this practice area.

QUESTION: Nauman Smith’s first railroad client was in 1880 with Hall v. Pennsylvania Railroad Co. What is your understanding of Nauman Smith’s earliest railroad relationships?

BEN: Lyman D. Gilbert, one of the firm’s founders, was the brother of Spencer C. Gilbert, a Director of the Pennsylvania Railroad. This relationship obviously gave us a big leg up for getting work. The Pennsylvania Railroad was a huge corporation in its day. Back then, in the late 1800’s and early 1900’s, it was the Apple of its time, a fount of technology and innovation. So that was quite a coup, us getting that work. And while we may have landed it originally through a family relationship, the fact that we’ve been representing the railroad for 140 years since says something about the skill and results that we have brought and continue to bring to the table.

QUESTION: And that’s my next question. How has Nauman Smith been able to maintain and grow these relationships? It’s been 142 years since Hall v. Pennsylvania Railroad Co., which is almost as long as the firm has been in business. How do you do that with so much change taking place?

BEN: I think it’s really two reasons. One – by doing good work and being attentive to their needs and attentive to the changes of the industry over the years. And two – by prioritizing and maintaining good relationships with their in-house counsel, engineers, and claims agents.

QUESTION: What are some of those noteworthy industry changes that the firm has had to be attentive to, whether it’s the railroad industry specifically, or a broader look at transportation law?

BEN: As I mentioned, the Pennsylvania Railroad was huge at the time we started representing them and for many years thereafter. And then it went through a trough, particularly after World War II and the building of highways, when trucking took over much of the freight hauling. Passenger railroads were the first to go due to the advent of highways and cars, and then freight railroads followed. We then saw the bankruptcies and consolidations of the late 60’s through the mid-70s.  These new formations were ultimately positive and allowed the railroads, which were highly regulated before that, to shed unprofitable lines and concentrate on their core business of moving freight over long distances.  Many of the branch lines have been purchased by short line railroads, which can profitably move freight over shorter distances.  Now we see that railroads are a much more energy efficient way to transport goods over long distances.

QUESTION: How are you seeing the trucking and railroad industries working together because of these advancements?

BEN: I think the trucking industry and the railroad industry have come to an understanding of how they fit together. That for long haul transportation, especially of large goods or commodities, like coal, chemicals, automobiles, or in more recent years, intermodal containers where you can take it off the train and put it right on a truck for transport to its final destination, that’s been huge.  It has caused both the trucking and railroad industries to operate in the most efficient ways for both of them.

QUESTION: What types of work does Nauman Smith do for our railroad clients?

BEN: We currently support our clients in three areas of law. The first area is liability, and that’s both in crossing accidents throughout south central PA at railroad crossings, and also where employees or contractors are injured. The railroads do not have worker’s comp. They are subject to the Federal Employers Liability Act, which is negligence based. The second area is public utility work, which is regulatory work under the Pennsylvania Public Utility Commission. And that’s primarily railroad crossings, bridges, at-grade crossings with lights and gates.  Although which party has to pay for the construction and maintenance of this infrastructure is usually the primary issue, other matters, such as whether a new crossing is necessary or would be feasible or safe, also come into play. And the third area is real estate. That has to do primarily with private crossings or eminent domain cases.

QUESTION: My final question for you, Ben, is what do you like most about working with Nauman Smith’s railroad clients or practicing transportation law in general?

BEN: I find the field interesting because there’s a lot of room for negotiation. Because there’s an equitable standard for who’s responsible, and just speaking to what I do, there’s a lot of room for negotiations. Our clients are generally on the hook to some level, and my job is to find a way forward that all parties will find to be fair and rational, and that will withstand scrutiny when it goes before the PUC. I find that fun.  I like working with engineers because as a group they are precise and professional. It’s always fun working with people who challenge you because they’re good at what they do.

To learn more about the history of Railroad and Transportation Law at Nauman Smith, and to explore ways to be a part of our future, please contact Ben at bdunlapjr@nssh.com.

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