PHILADELPHIA – The engineer of an Amtrak train which crashed and derailed in Philadelphia in 2015 is now suing the transit company, seeking indemnification and restitution for the costs he incurred in defending himself both civilly and criminally in proceedings stemming from the accident.
Brandon Bostian of Georgia filed suit in the U.S. District Court for the Eastern District of Pennsylvania on May 24 versus National Railroad Passenger Corporation (Amtrak), of Washington, D.C.
“Bostian was an employee of defendant Amtrak and the locomotive engineer of Amtrak Train 188 on May 12, 2015, when that Train was involved in a crash. Following the Train crash, multiple personal injury lawsuits were brought against Amtrak and Bostian. Amtrak provided counsel to Bostian pursuant to the indemnity clause within its bylaws. Multiple monetary releases were executed in this regard. Amtrak is governed by corporate bylaws, which at Article IX, 9.01, (e) & (k) deal with employee indemnification. The bylaws of Amtrak prescribe an indemnification policy be promulgated to implement the indemnification clause. Amtrak adopted its policy on indemnification dated July 25, 2012,” the suit states.
“Pursuant to Bostian’s request, and pursuant to Amtrak bylaws and policies, Amtrak indemnified Bostian in the civil matters, prior to any criminal proceedings, as documented in the memo dated June 25, 2015. At the time Amtrak gave indemnity to Bostian, Amtrak was fully aware of the facts underlying the crash of Train 188. The facts in both the civil and criminal matters are identical. The crash of Train 188 was also the subject of ongoing investigations conducted by multiple law enforcement agencies. Ultimately, Bostian was required to retain personal counsel. In 2017, Bostian was charged criminally by the Attorney General of Pennsylvania for his conduct, which was alleged to have caused the crash of Train 188.”
The suit continues that the criminal prosecution involved multiple preliminary hearings, appeals and ultimately, a trial held in Philadelphia last year. In that trial, Bostian was found not guilty on all charges.
“Bostian prepaid for his extensive criminal defense. After the verdict in the criminal trial, Bostian again requested indemnification. Amtrak has not responded to the request of Bostian for indemnification. In January 2017, Bostian commenced an action against Amtrak in the Philadelphia County Court of Common Pleas, Pennsylvania at January Term, 2017, No. 3489, seeking damages for personal injuries. In the action in Philadelphia at January Term, 2017, No. 3489, Amtrak has filed a counterclaim seeking damages from Bostian,” the suit says.
“Bostian seeks a declaration that Amtrak is required to indemnify Bostian in full, for all liabilities, attorney’s fees and/or related costs and expenses he has paid or will pay in connection with the May 12, 2015, crash of Amtrak Train 188 in any and all related proceeding and an award of damages consistent with such declarations. Bostian has incurred more than $400,000 in defending the criminal action brought against him by the Attorney General of Pennsylvania in Commonwealth of Pennsylvania v. Bostian. Bostian was found not guilty on all counts, in the criminal matter brought against him by the Attorney General in Commonwealth of Pennsylvania v. Bostian.”
The suit then quotes Amtrak’s policy as to indemnification, which states it is the company’s objective to “identify and advance expenses to any such employee or agent acting within the scope of their duties to Amtrak with respect to any liabilities or losses, including expenses, judgments in amounts paid in settlement, incurred by such person or on his or her behalf in any proceeding by reason of the fact that such person was or is an employee or agent, provided that the employee or agent acted in good faith and in a manner the person reasonably believed to be in (or not opposed to) the best interest of Amtrak and, in the case of a criminal proceeding, must not have had reasonable cause to believe that his or her conduct was unlawful.”
Per their corporate policy, Amtrak decided to indemnify and defend Bostian in several civil matters associated with the accident.
“Amtrak’s decision to defend you is based on a presumption that you acted within the scope of your duties to the corporation, in good faith and in a manner you reasonably believed to be in (or not opposed to) the best interest of the corporation. If at any time Amtrak determines that you failed to act in this matter, as set forth in Article IX of Amtrak’s bylaws, council assigned to defend you will, as appropriate, withdraw their appearance on your behalf, or will petition the court to withdraw their appearance; it will be your obligation to locate and retain counsel to defend you; and you will be required to repay any attorney’s fees advanced or reimbursed by Amtrak,” the suit states.
“The findings made by Amtrak in their indemnification memo, were required by the bylaws, for the indemnification of Bostian in civil matters. The findings of Amtrak establish that Bostian: a) Acted within the scope of his duties to the corporation, b) In good faith and c) In a manner he reasonably believed himself to be in the best interest of the corporation. Amtrak has never determined that Bostian had failed to act in the manner set forth in its findings. Amtrak never sought reimbursement of attorney’s fees associated with the indemnification.”
For counts of declaratory relief, reimbursement of expenses in all proceedings and reimbursement of future expenses, the plaintiff is seeking the following relief:
• Indemnification by Amtrak with respect to liabilities or losses, including expenses, judgments and amounts paid and/or incurred by Bostian or on his behalf in all past civil, criminal or agency proceedings;
• Indemnification by Amtrak with respect to liabilities or losses, including expenses, judgments and amounts paid and/or incurred by Bostian or on his behalf in all current and future civil, criminal or agency proceedings;
• An award for attorney’s fees and costs incurred in this action;
• Such other relief as this Court deems just and equitable.
The plaintiff is represented by Robert S. Goggin of Keller & Goggin, in Philadelphia.
The defendant has not yet obtained legal counsel.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-01975
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com