COMMENTARY |  | | December 16, 2003 | Dow Jones WebReprint Service® |
The 9/11 DeadlineBy JAY LEFKOWITZ On Dec. 22, 2003, the curtain will close on the September 11 Victim Compensation Fund, an unprecedented federal program that provides an average of $1.7 million tax free to the families of each fallen victim. By that day, the relatives of approximately 3,000 individuals who perished in the attacks, as well as all those survivors who were injured, will have had to decide once and for all whether to take advantage of the federal government's offer of compensation. Enacted by Congress only 11 days after the attacks, the Fund was intended to shield the airlines from endless litigation, as well as to provide speedy compensation to the victims on a no-fault basis in a non-adversarial forum. While Congress had established other compensation programs in the past — for miners afflicted with Black Lung disease, for example, or workers exposed to dangerous levels of radiation — it had never before set up a program this generous, nor had it ever agreed to compensate victims of terror as a trade-off for access to the courts. Under any other set of circumstances, a program such as this might have been dead on arrival because trial lawyers would have howled that it was a form of "tort reform." Ironically, the Fund may ultimately serve as a prime example of a compensation program far superior to the traditional tort system. After all, in no mass disaster has our court system ever provided such prompt and substantial compensation to every single victim with a legitimate claim — and all without having trial lawyers skim 30%-50% off the top. * * *In establishing the Fund, Congress set only a few ground rules. To submit a claim, individuals must waive their right to sue any domestic entity in connection with the attacks; lawsuits against foreign terrorists or foreign governments harboring terrorists are not precluded. Claimants are then entitled to compensation based on their economic loss (income that would likely have been earned by a loved one had he not perished), and non-economic loss (pain and suffering). The law also requires that the total amount of money received by the claimants from other sources (such as life insurance proceeds) be subtracted from the Fund award. Beyond these general provisions, however, the Act gives enormous discretion to a Special Master appointed by the attorney general. Congress did not even set an outer limit on the total amount of money that the Special Master may expend. But in its attempt to deal humanely with an inhumane event, Congress raised as many vexing questions as it answered. Most importantly, should Congress have created a Fund limited to Sept. 11? The Fund does not cover the victims of the bombings at Oklahoma City or the African embassies, or the first attack on the World Trade Center. Nor does it offer to compensate citizens who are killed in future terrorist attacks. There are other questions: Should the government award a vastly different sum of money to the widower of a waitress than to the widower of a successful stockbroker? (Congress said yes, although it gave the Special Master discretion to set each award at a "fair" level.) Should every claimant receive the same amount for suffering, or should some family members, such as those who spent the last minutes talking to loved ones on cell phones, receive more? Should charitable contributions made to individual victims be deemed a collateral source if such a policy would have the effect of chilling charitable donations? Still other issues have arisen during the Fund's implementation: Is the appropriate claimant on behalf of a single victim the parents, who may not have seen their child in years, or the victim's fiancé, whose wedding was scheduled for early October? What about the competing claims of the ex-wife who is still caring for the victim's children versus the current wife or even the victim's same-sex partner? And how should the Fund deal with a claim filed by the widow of a foreign citizen or illegal alien? With approximately 3,000 fatalities, nearly every story is different and the law, necessarily drafted in haste, left many unanswered questions. Working within the broad discretion afforded him by Congress, and in close cooperation with the Department of Justice, Special Master Kenneth Feinberg has successfully navigated these challenging issues in an effort to be consistent and compassionate. The results speak for themselves. About 4,500 eligible claims have already been filed, about half of which are for death claims. Only 73 disqualifying lawsuits have been filed by individuals seeking redress against the airlines and other defendants. For the claims submitted, the awards for fatalities range from $250,000 to $7 million, and for physical injuries from just $500 to $7.9 million. But with Dec. 22 only days away, more than 700 families with death claims appear to have made no choice at all, largely because they are still grieving and cannot bring themselves to file a claim for compensation. Their grief is understandable. But inaction in the face of the Fund's deadline would be foolish. While no amount of compensation can ever fill their void, these families should think long and hard before passing up Congress's offer of substantial compensation. Mr. Lefkowitz headed the White House Domestic Policy Council before returning to law practice this Fall.
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