FEDERAL-AID POLICY GUIDE
December 9, 1991, Transmittal 1
23 CFR 646A
OPI: HNG-12
SUBCHAPTER G - ENGINEERING AND TRAFFIC OPERATIONS
PART 646 - RAILROADS
Subpart A - Railroad-Highway Insurance Protection
Sec.
646.101 Purpose.
646.103 Application.
646.105 Contractor's public liability and property damage insurance.
646.107 Railroad protective insurance.
646.109 Types of coverage.
646.111 Amount of coverage.
Authority: 23 U.S.C. 109(e), 120(d), 130, and 315; 49 CFR 1.48(b).
Source: 39 FR 36474, Oct. 10, 1974, unless otherwise noted.
Sec. 646.101 Purpose.
The purpose of this part is to prescribe provisions under which Federal funds may be applied to the costs of public liability and property damage insurance obtained by contractors:
(a) for their own operations, and
(b) on behalf of railroads on or about whose right-of-way the contractors are required to work in the construction of highway projects financed in whole or in part with Federal funds.
Sec. 646.103 Application.
(a) This part applies:
(1) To a contractors' legal liability for bodily injury to, or death of, persons and for injury to, or destruction of, property.
(2) To the liability which may attach to railroadsfor bodily injury to, or death of, persons and for injury to, or destruction of, property.
(3) To damage to property owned by or in the care,custody or control of the railroads, both as such liability or damage may arise out of the contractor's operations, or may result from work performed by railroads at or about railroad rights-of-way in connection with projects financed in whole or in part with Federal funds.
(b) Where the highway construction is under the direct supervision of the Federal Highway Administration (FHWA), all references herein to the State shall be considered as references to the FHWA.
Sec. 646.105 Contractor's public liability and property damage insurance.
(a) Contractors may be subject to liability with respect to bodily injury to or death of persons, and injury on, ordestruction of property, which may be suffered by persons other than their own employees as a result of their operations in connection with construction of highway projects located in whole or in part within railroad right-of-way and financed in whole or in part with Federal funds. Protection to cover suchliability of contractors shall be furnished under regular contractors' public liability and property damage insurance policies issued in the names of the contractors. Such policies shall be so written as to furnish protection to contractors respecting their operations in performing work covered by their contract.
(b) Where a contractor sublets a part of the work on any project to a subcontractor, the contractor shall be required to secure insurance protection in his own behalf under contractor's public liability and property damage insurance policies to cover any liability imposed on himby law for damages because of bodily injury to, or death of, persons and injury to, or destruction of, property as a result of work undertaken by such subcontractors. In addition, the contractor shall provide for and on behalf of any such subcontractors protection to cover like liability imposed upon the latter as a result of their operations by means of separate and individual contractor's public liability and property damage policies; or, in the alternative, each subcontractor shall provide satisfactory insurance on his own behalf to cover his individual operations.
(c) The contractor shall furnish to the State highway department evidence satisfactory to such department and to the FHWA that the insurance coverages required herein have been provided. The contractor shall also furnish a copy of such evidence to the railroad or railroads involved. The insurance specified shall be kept inforce until all work required to be performed shall have been satisfactorily completed and accepted in accordance with the contract under which the construction work is undertaken.
Sec. 646.107 Railroad protective insurance.
In connection with highway projects for the elimination of hazards of railroad-highway crossings and other highway construction projects located in whole or in part within railroad right-of-way, railroad protective liability insurance shall be purchased on behalf of the railroad by the contractor. The standards for railroad protective insurance established by Secs. 646.109 through 646.111 shall be adhered to insofar as the insurance laws of the State will permit.
[39 FR 36474, Oct. 10, 1974, as amended at 47 FR 33955, Aug. 5, 1982]
Sec. 646.109 Types of coverage.
(a) Coverage shall be limited to damage suffered by the railroad on account of occurrences arising out of the work of the contractor on or about the railroad right-of-way, independent of the railroad'sgeneralsupervision or control, except as noted in ec. 646.109(b)(4).
(b) Coverage shall include:
(1) Death of or bodily injury to passengers of the railroad and employees of the railroad not covered by State workmen's compensation laws;
(2) Personal property owned by or in the care, custodyor control of the railroads;
(3) The contractor, or any of his agents or employees who suffer bodily injury or death as the result ofacts of the railroad or its agents, regardless of the negligence of the railroad;
(4) Negligence of only the following classes of railroad employees:
(i) Any supervisory employee of the railroad at the job site;
(ii)Any employee of the railroad while operating, attached to, or engaged on, work trains or other railroad equipment at the job site which are assigned exclusively to the contractor; or
(iii) Any employee of the railroad not within (b)(4) (i) or (ii) who is specifically loanedor assigned to the work of the contractor for prevention of accidents or protection of property, the cost of whose services is borne specifically by the contractor or governmental authority.
Sec. 646.111 Amount of coverage.
(a) The maximum dollar amounts of coverage to be reimbursed from Federal funds with respect to bodily injury, death and property damage is limited to a combined amount of $2 million per occurrence with an aggregate of $6 million applying separately to each annual period except asprovided in paragraph (b) of this section.
(b) In cases involving real and demonstrable danger of appreciably higher risks, higher dollar amounts of coverage for which premiums will be reimbursable from Federal funds shall be allowed. These larger amounts will depend on circumstances and shall be written for the individual project in accordance with standard underwriting practices upon approval of the FHWA.
[39 FR 36474, Oct. 10, 1974, as amended at 47 FR 33955, Aug. 5, 1982]
