November 23, 2001 - Airport Law Also Limits Terror Victims' Right to Sue
WASHINGTON - In the years following the terrorist bombing of Pan Am Flight 103 over Lockerbie, Scotland, American juries consistently held the airline responsible, awarding one widow $19 million and smaller amounts to many others.
But the spouses, children and parents of those killed in the Sept. 11 attacks are unlikely to see anything close to that kind of money, even though hijackers slipped through airport security, took control of four jets and killed thousands.
That's because Congress, in an unprecedented move, has shielded most of the potential lawsuit targets from almost all liability. Those players include United and American airlines, the airports and Boeing, as well as the Port Authority of New York and New Jersey that governs Newark International Airport and the World Trade Center.
Only days after the attacks, lawmakers created a special fund to compensate the survivors in return for protecting the airlines from culpability beyond the roughly $1.5 billion in insurance carried for each plane.
The aviation security bill signed into law by President Bush this week goes even further, extending protection to the other potential targets such as the airports and Boeing, which built the doomed planes.
Like the airlines, they can be sued, but only to the limits of their insurance coverage.
Longtime aviation litigator Aaron J. Broder said the limitations backed by President Bush and Congress present a no-win situation for victims' families, some of whom he represents. Because of the caps, Broder said, survivors will be forced to accept the government's check or roll the dice on winning a share of the few billion dollars of insurance money in court.
As lawmakers bickered for weeks over whether to make baggage screeners federal employees, he said, families of the survivors were quietly being sold out by the added lawsuit protections.
"To let them off the hook completely except for their insurance coverage - so that they don't pay a penny out of their own pocket - was absolutely horrendous, a travesty of justice," said Broder, who has won a number of large settlements growing out of airline disasters, including the record Lockerbie award.
"Tacked on to the bottom of this (airline security bill) was a bomb that blew up the rights of these people," he said.
Without the limitations, Broder and other lawyers said, the families could have won millions for each person who died. With the limitations, the survivors will have to choose very carefully.
"Before, we had a huge deep pocket in Boeing, and another deep pocket in the World Trade Center - and likely liability, too," Broder said. "Now, you've taken all that away."
House Democrats and senators from both parties initially criticized the idea of extending the liability protection beyond the airlines. But House Republicans thought it was essential to keep companies with ties to Sept. 11 from plunging into bankruptcy, as Pan Am did shortly after Lockerbie.
Also fueling the decision was the sheer scale of the attack - as well as fears that similar acts of war could again occur on U.S. soil.
"I don't want to put manufacturers out of business. Just turn on the TV. You can be sued for looking cross-eyed," said U.S. Rep. John Mica, one of the chief negotiators on the aviation security bill.
Mica, R-Fla., co-authored the House version of the bill, which first proposed the extended protections.
Larry Stewart is a Miami attorney who heads up a group called Trial Lawyers Care, which is offering free assistance to more than 500 families victimized by the attacks. Stewart, whose group won't help those families bring lawsuits, said exempting the airlines from liability made sense to save the industry from collapse.
The same argument can't be made, he said, for broadening that protection.
"For the government to go and wipe out individual rights is an extremely dangerous situation and proposition," he said.
Further complicating the situation are the unanswered questions surrounding the government compensation fund. Congress gave Attorney General John Ashcroft until Dec. 21 to name someone to oversee distribution of the fund. That "special master" also will decide many of the rules for distributing the money.
Still unknown is exactly how big the pot will be. Congress didn't set a figure when it approved $40 billion to help in the recovery effort - at least half of which likely will go to help rebuild parts of Manhattan.
A victim's life insurance policy or pension probably will be subtracted from the amount given to survivors, although even that's not totally certain. Money received from charities such as the Red Cross also may be counted against a family's share of the fund.
That combination has some lawyers thinking that their clients may do better in court.
New York attorney James Kreindler represents more than 50 families of Sept. 11 victims. The decision to go with the fund or go to court will have to be made individually, he said. But survivors of a victim who had a large life insurance policy probably won't be eligible for much, if anything at all, from the government, he added.
Kreindler, like others working for the families, is waiting to see whom Ashcroft chooses as special master, and what the rules will be.
"Once that happens, we're going to be very busy, advising clients to go into the fund or not," Kreindler said. "We want to have claims ready to go right after that."
Certainly, the government fund will be appealing to many. The claims must be paid by the end of 2003, which is practically overnight when compared with the years-long process of bringing and settling lawsuits.
Blair Fensterstock, the lead attorney in a still-unresolved lawsuit against the New York Port Authority for damages stemming from the 1993 World Trade Center bombing, said the fund presents a much better alternative than the one offered by existing judicial system.
"I think the concept is a terrific concept, as long as it is implemented properly," he said. "That's why it is extremely important that the right special master be appointed and that the authority to distribute the funds is set appropriately."
But with a special master replacing sympathetic juries, families can expect smaller sums in return for the quick turnaround, lawyers say.
In court, lawyers could argue that victims suffered for minutes - even hours - before their deaths, and that their families deserve big awards for that agony above and beyond a compensation award for future earnings and other damages.
For example, when a Russian missile shot down a Korean Air Lines jet in 1983, trial lawyers secured $1 million for pain and suffering for one victim. That's roughly $100,000 for each minute of terror from the time the plane was hit until it plunged into the Sea of Japan.
Pressure to keep the fund relatively small-as the cost of the attacks and the war in Afghanistan continue to drain the federal budget-also may come into play.
"Is the special master arbitrarily going to pick lower numbers to protect the treasury?" Kreindler asked. "I don't know."
In creating the fund, lawmakers pledged to make sure that survivors would well compensated. With the latest liability protections, Broder said, they have broken that promise.
"We're talking about huge amounts of money that they would have had a right to pursue. And they're not going to get anything like it," he said. "In my view, they're not going to be fully compensated - not by far."
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