Judge gives approval to settlement

The Associated Press

BISMARCK -- A federal judge has given preliminary approval to a $7 million class action settlement stemming from a derailment and chemical spill on the edge of Minot five years ago.

Plaintiffs' attorneys will get one-third of the amount, a percentage University of North Dakota law school Dean Paul LeBel says is common. Attorneys on both sides estimate the rest will be shared by about 2,000 or 3,000 people who were in Minot the day of the Jan. 18, 2002, Canadian Pacific wreck.

If, for example, the class is made up of 3,000 people, they each would receive about $1,500.

The settlement is for people affected by the derailment who have not filed individual lawsuits. It does not affect the hundreds of people who have individually sued the Calgary, Alberta-based railroad that has its U.S. headquarters in Minneapolis.

Railroad attorney Tim Thornton told U.S. District Judge Daniel Hovland on Monday that the railroad has settled more than 1,000 of the individual suits and that "it is my hope by Labor Day we should be down to 20 or fewer cases."

When Hovland asked Thornton about settlement amounts in the individual cases, Thornton said it depended on medical claims but that "minor cases are worth $4,000. That's what we've been settling for."

Plaintiffs' attorneys have declined to release amounts in the individual lawsuit settlements, which do not need a judge's approval.

Hovland on Monday gave his preliminary approval to the class action settlement. He is tentatively set to give final approval in early October, after Minot residents are notified of the terms of the deal and given a chance to opt out and proceed against the railroad on their own with legal claims.

"This has been a very hard-fought, contentious piece of litigation that spanned five years," said Gordon Rudd, a Minneapolis attorney for the plaintiffs.

The early morning derailment on the west edge of Minot released a cloud of anhydrous ammonia, a toxic farm fertilizer. One man, John Grabinger, died trying to escape and hundreds of other people were treated for burns and breathing problems.

The National Transportation Safety Board later ruled that inadequate track maintenance and inspections were to blame, a finding the railroad disputed.

Hovland ruled in March last year that the Federal Railroad Safety Act protects the railroad from lawsuits such as those filed against Canadian Pacific in North Dakota and Minnesota after the derailment.

Fargo attorney Mike Miller, one of the plaintiffs' attorneys in the class action settlement, appealed Hovland's ruling to the 8th U.S. Circuit Court of Appeals about a year ago. The appeal is to be canceled when the lawsuit settlements become final.

Hovland said in his March 2006 ruling that "the judicial system is left with a law that is inherently unfair to innocent bystanders and property owners who may be injured by the negligent actions of railroad companies."

On Monday, he asked attorneys about efforts in Congress to change the law.

"I don't think there's any question that the law is going to be modified ... the question is to what degree," Thornton said.

Plaintiffs' attorney Charles Zimmerman said legislation has been proposed, but "I think it's hard to say where it's going to come out."

Rudd said Minot residents will be notified of the class action settlement terms by direct mail, by packets distributed in such places as churches, and by newspaper and radio advertisements. Attorneys also will set up a Web site, www.minotsettlement.com , and a toll-free number for people to call for information.

Miller said settlement amounts will be by person, not by family. For example, a husband and wife with two children would be a total of four claims.

Thousands of people signed releases of liability for the railroad after the derailment. Rudd said people who signed releases before Feb. 17, 2002, can be a part of the class, while those who signed releases after that date are not eligible.

For those eligible, he said, the money they received from the railroad when they signed the releases will be deducted from their award under the class action settlement. Thornton said people who signed the releases received "several hundred dollars."