MARC Camden Line train.  Photo by skew-t on Flickr.

The Maryland Transit Administration has no cap on tort liability, and that is the reason Maryland had to recently cancel bidding on a contract to operate MARC’s Camden and Brunswick lines.

In May 2009, the MTA invited bids on a contract for operation and maintenance of the two lines.  Last month, the bidding was canceled.  There had been only one bidder, namely Keolis, the company that has been operating VRE since July.

At a recent MARC Riders Advisory Council meeting, Simon Taylor, the MTA’s chief of staff, explained that liability requirements were the main obstacle for bidders. 

If you get hit by a Maryland State Highway Administration snow plow, tort liability is limited by the Maryland Tort Claims Act to $200,000 to a single claimant for injuries arising from a single incident or occurrence.

If you get hit by a speeding police car and its driver in Maryland, tort liability is similarly limited to $200,000 by the Local Government Tort Claims Act.

Yet if you get hit by an MTA bus or MARC train, the MTA’s tort liability is unlimited.

CSX, which owns the tracks the Brunswick and Camden Lines operate on, requires MARC to carry $500 million per incident in liability insurance.  MARC currently self-insures up to $5 million and would have required the winning bidder to carry $5 million in insurance as well.

Potential bidders had apparently found this requirement too difficult to meet. But the MTA is forming a rescoping group, Taylor added, with a mandate to identify possible changes in the request for proposals that might encourage more bidders.

Meanwhile, CSX will continue to operate the Brunswick and Camden Lines through June 2012.  After that, the MTA may exercise options with CSX for 4 three-month extensions, through June 2013.  The MTA is paying CSX approximately $1 million extra per year for not getting CSX out of MARC operations and maintenance on schedule.

The obvious question is why the MTA requires so much liability insurance in the first place, when so little tort liability exists in seemingly analogous situations.

In Collier v. Nesbitt (1989), a court held that the Maryland Tort Claims Act does not apply to the MTA, because Section 7-702 of the Maryland Transportation Article is “a general waiver of sovereign immunity for the MTA”, and the Maryland Tort Claims Act applies only “where no specific sovereign immunity waiver otherwise exists.”

To make the law more equitable, the Maryland Department of Transportation has at least twice introduced legislation in the General Assembly to cap the MTA’s tort liability.

In 2005, SB 154 would have capped the MTA’s liability for the tort of an entity under contract to the MTA at the limits of the Maryland Tort Claims Act.  But the bill received an unfavorable report from the Judicial Proceedings committee.

In 2007, HB 1130 would have capped the MTA’s liability at $1 million for a single claimant for a single incident.  This bill was withdrawn.

So try and try again?  Let’s hope so.  This time a bill might pass, and Brunswick and Camden Line MARC riders could feel more confident that their trains will still be running on July 1, 2013.