| by |
Phillip J. Kolczynski |
Far beyond the criminal and national security ramifications of the
September 11 terrorist attacks are the legal liability issues. And, of
course, Congress managed to further confuse matters when it passed a law
providing relief to the airlines, including liability limitations. AVweb's
Phil Kolczynski examines the current state of the law and what impact, if
any, there may be on either the affected airlines or on plaintiffs.
Perhaps
no single event in the history of the aviation industry has caused such
immediate an impact and potential long-term damage as the terrorist attacks of
September 11. The terrorists chose to attack America through the aviation
industry. The resulting fear has all but put the airlines out of business.
Tens of thousands have lost jobs. At least 6,000 people were killed and over
8,000 were known to be injured. Legal claims for losses are estimated between
$10 and $15 billion.
Eleven days after the September 11 disaster, Congress passed emergency
airline bailout legislation designed to provide unprecedented
financial/liability protection for domestic air carriers. In its rush to act,
Congress left many other elements of the aviation industry unprotected.
Unfortunately, extreme pressure to act precipitously may also have created
unnecessary problems for those who must implement the well-intended protection
of Congress. Airline managers may succeed in restoring pre-September flight
schedules. The people of the United States may return to flying rather than
fearing. Will the bailout/liability protection measures work to protect the
airlines against financial disaster because of $10 to $15 billion of lawsuits?
This article will discuss the legal issues associated
with the airline bailout legislation, including an analysis of the Air
Transportation Safety and System Stabilization Act, legislation conceived and
passed by Congress and then enacted into law by President Bush in the days
immediately following the September 11 terrorist attacks.
The September 11 Victim Compensation Fund (the "Fund") was
specifically designed to shield the airlines against anticipated lawsuits by
the victims of the September 11 disasters. On September 22, 2001, President
Bush signed into law the "Air Transportation Safety
and System Stabilization Act" (the "Act"). Title IV of Public
Law 107-42, 115 Stat. 230 (2001). The Act provides for mega-buck airline
financial stabilization, unprecedented aviation insurance protection, air
carrier tax benefits, improvements in air transportation safety and a generous
Victim Compensation Fund. The whole Act, distilled to its essentials, is
designed to do one thing -- protect the airlines.
As of the publication of this article -- October 15, 2001 -- no federal
statute has been enacted to protect any other component of the aviation
industry or the people in the industry who are out of work. (A
bill has been introduced in Congress, entitled "The General Aviation
Small Business Relief Act of 2001," sponsored by Rep. Bill Shuster
(R-Penn.). This bill would allow the Small Business Administration to
provide grants "equaling the losses incurred as a result of FAA or DOT
orders," to issue loans with no payments or interest for one year and
"to allow the Secretary of Treasury to extend for two or four months the
due date for certain excise taxes paid by qualifying companies.")
The airline bailout "Act" of September 22, 2001, guarantees the
following protection for the airlines:
- Disaster relief loans up to $10 billion. (Interestingly, there has been
only one taker so far, America West, which just about everyone agrees will
be one of the first carriers to fail, if any do.);
- Financial compensation to $5 billion for direct and incremental losses.
(Money to stem the flow of green blood caused by terrorists, not financial
losses due to poor management);
- Special support to ensure scheduled air service to outlying communities.
(the safest routes);
- Reimbursements of premium increases by aviation insurers. (Who gets this
money? Will the airline insurers promise not to include terrorist-caused
loss exclusions in their policies at renewal?);
- A commitment to spend $3 billion on airline safety and security. (Better
too late than never.);
- Special limitations on air carrier liability regardless of fault. (What
if the factual accident reports of the September 11 terrorist crashes
reveal clear airline negligence?);
- An airline liability cap on all compensatory and punitive damage claims
arising out of the crashes. No air carrier shall be liable in an amount
greater than the liability insurance coverage maintained by the air
carrier on September 11. (United and American reportedly each had $3.2
billion dollars coverage on September 11.);
- A government insurance umbrella for air carriers, their vendors and
subcontractors for third-party losses due to terrorism. The umbrella
covers losses in excess of $100 million, during the 180-day period from
the passage of the Act. (Perhaps this provision should be called the
aviation insurance company stop-loss benefit?);
- A new and exclusive federal cause of action controlling all lawsuits
arising out of the terrorist-related crashes of September 11. (No creative
lawsuits in state and federal courts.);
- Original and exclusive jurisdiction for all September 11 lawsuits in the
U.S. Federal District Court located in Manhattan, N.Y. (Defendants will
all be in "one court," before "one" set of judges,
with jurors drawn from "one" district -- the "one"
encompassing the scene of the disaster. "One" question: How does
the court find unbiased jurors?);
- A Victim Compensation Fund run by the U.S. Justice Department with no
spending limit, designed to generously and rapidly compensate victims
if they do not sue the airlines.
The Fund is so unique and so controversial that it deserves in-depth
analysis.
The September 11 Victim Compensation Fund
Congress created an unlimited Fund to provide monetary compensation for
individuals who were physically injured because of the terrorist-related
aircraft crashes of September 11, 2001. The key components of the victim
compensation Fund are:
- A no-fault insurance program by the government -- a victim will not have
to prove who was at fault in order to collect compensation from the Fund;
- No ceiling or limit on the amount of money to be paid by the federal
government to victims or the representative of survivors who file claims
under the Fund;
- One person, a "special master," appointed by the Attorney
General, will decide how much each claimant is paid. The special master
will use hearing officers to help evaluate the claims;
- The Attorney General's special master is not subject to confirmation by
the Senate;
- Any decision by the special master is final and not subject to appeal in
any court;
- The special master will decide whether a claimant is
"eligible," the "extent of harm" and the
"individual circumstances" for which a claimant will receive
compensation and the amount of compensation;
- The special master must make his decision within 120 days after the date
the claim is filed;
- The claimant will be paid 20 days after the decision of the special
master;
- The only eligible claimants are "individuals" who suffered
physical harm or death because of the plane crashes of September 11,
either on the ground or in the aircraft (terrorists and co-conspirators
are excluded);
- The Fund only covers individuals who have suffered "physical"
harm as a result of the terrorist attacks on September 11;
- To be eligible, an individual (injured or deceased) had to be
"present at" the site of a September 11 crash, and be there at
the time of the crash or in its "immediate aftermath";
- A claimant will have two years from the date on which regulations are
promulgated under the Act to file a claim on the compensation Fund;
- A survivor who files an early lawsuit will have 90 days from the
issuance of regulations to withdraw the lawsuit and file a claim within
the Fund;
- Upon filing a claim under the Fund, claimants will immediately and
permanently give up their right to file any lawsuit against any party
responsible for their injuries on September 11;
- Individuals who submit claims to the Fund have the right to be
represented by an attorney but there is no provision for the payment of
attorneys' fees;
- This Fund does not presently cover any other terrorist attacks on any
other occasion;
- Claimants will have some rights to present evidence including witnesses
and documents, and other due process rights to be determined by the
special master;
- The special master will not pay for punitive damages from the Fund;
- The special master "shall" "reduce the amount of
compensation paid under the Fund by any collateral source compensation the
claimant has received or is entitled to receive.
The Victim Compensation Fund Could Be Very Fair
Economic Losses...
The Fund provides for recovery of both "economic" losses and
"non-economic" losses. The "economic" losses payable under
the Fund rival those of the states whose laws provide the most generous
compensation for pecuniary loss of individuals who are seriously injured or
killed. Economic losses covered under the Fund include "any pecuniary
loss resulting from harm (including the loss of earnings or other benefits
related to employment, medical expense loss, replacement services loss, loss
due to death, burial costs and loss of business or employment opportunities)
to the extent recovery for such loss is allowed under applicable state
law." This definition of "economic loss" means that the special
master must, in the case of decedents, pay for all of the lost earning
potential of a person physically injured. The special master should compensate
for wage increases, bonuses, fringe benefits, second-career opportunities,
pensions, cost-of-living increases, etc., and any monetary benefits the
deceased person would have provided to their survivors.
A few states, such as New York, allow only pecuniary damage recovery in
wrongful death cases, refusing to compensate for non-economic losses. Some
states allow non-economic damages but put monetary limits on such losses. Even
in the majority of states that allow full recovery of non-economic losses,
certain non-economic losses such as hedonic damages and those involving a loss
of enjoyment of life are controversial and infrequently awarded. Congress said
that, under the Act, "any kind" of non-economic losses will be paid.
...Non-economic Losses
"Non-economic" losses are defined in the Act to include losses
for "physical and emotional pain, suffering, inconvenience, physical
interment, mental anguish, disfigurement, loss of enjoyment of life, loss of
companionship, loss of consortium, hedonic damages, injure to reputation and
all other non pecuniary losses of any kind or nature." All non-economic
losses can be hard to measure. Yet Congress has chosen to allow recovery under
the Fund for almost any non-economic losses -- "all other non-pecuniary
losses of any kind or nature."
Compensation for claims payable from the Fund should be ample as long as
the Department of Justice (DOJ) "measures" the losses liberally. The
DOJ must also avoid arbitrary mathematical compensation formulas, and pay
according to the "individual circumstances" of the victims. However,
the DOJ has already implied in its Advanced Notice of Rulemaking that it is
looking for ways to develop "schedules and statistical
methodologies" thatfs could facilitate the mass production of claims
within the mandated claim determination period.
Problems With The Victim Compensation Fund
At the time this article was being written, the DOJ was working on
regulations to interpret and implement the Victim Compensation Fund Act. The
DOJ plans to provide both substantive and procedural guidelines for how claims
will be handled within the Fund. Hopefully, many of the problems discussed
will be resolved by means of the implementing regulations. Congress has
ordered that the regulations must be issued within 90 days of the passage of
the Act, which means by December 21, 2001. The Justice Department has already
issued an Advance Notice of Rulemaking (ANRM) for the
September 11 Victim Compensation Fund. This DOJ notice already
acknowledges problems with the Act and seeks public
comment to help with resolving them. Here are a few of the problems and
questions arising from the Act.
The 90-Day Implementation Deadline May Result in Arbitrary Procedures...
In 90 days, the Attorney General must rapidly create a body of rules and
procedures to dispense an unrestricted amount of federal money to over 14,000
potentially eligible victims from different states and counties. The Act
requires that the special master must rule on claims within 120 days after the
enactment of the regulations. There will be very little time for legal review
and amendment of the 90-day rules before the special master's decisions are
final. Despite the best efforts of people at the DOJ, the unrealistic
deadlines may result in arbitrary procedures that may be unfair for some
people.
On November 5, the Justice department gave the public merely 21 days (until
November 21) to comment on its advanced notice but without revealing any of
the draft rules. The
DOJ has been deluged with comments.
...What Laws or Rules Will Control Eligibility and Other Key Issues?...
The Act provides that the laws at the place of the crash will apply to
those lawsuits that are filed in the federal court in Manhattan. However, the
Act does not specify what laws should be used by the special master to
evaluate claims under the Fund. The definition of "economic loss "
in the Act allows pecuniary loss to be recovered to the extent that such
recovery is allowed under "applicable state law."
This is the only reference to state law in the legislation but it suggests
that the special master should refer to state law. But, to which state law?
The DOJ, in its ANRM, admits that there are many legal issues not covered by
this unique legislation. Can the special master develop uniform rules
independent of survivors' rights under state laws? If so, how will the rules
be fair to survivors whose rights vary depending on their home state?
...The DOJ as a Trustee for the Victims?...
Some believe that the DOJ is in something of a conflict of interest when
functioning as a trustee for the Fund. Although the lawyers at
"Justice" are some of the best lawyers in government service, the
ones who are experienced in handling wrongful death civil cases are usually
"defense" lawyers. The civil (versus criminal) lawyers of the DOJ
are usually tasked with protecting the money of the taxpayer against claims by
victims, when the United States is involved in civil litigation. (After many
airline disasters, the lawyers of the DOJ's Aviation Unit defend against
victim claims.)
Will the hearing officers be DOJ lawyers? Will they be political
appointees? When the DOJ issues rules, it should facilitate the liberal and
remedial intent of the Act. It remains to be seen whether compassionate
hearing officers will be appointed with substantial experience in evaluating
wrongful death cases.
Will the DOJ require all hearings to take place in Washington, D.C.? Will
the special master appoint hearing officers in different regions where a
substantial number of survivors reside?
Claimants have two years to file their claims. Those who can afford to
postpone claims are likely to take a "wait-and-see" approach to find
out how the early claimants fare. Any perceived unfairness or stinginess will
support the "opt-out" advocates.
...There are Serious Issues as to Who is Eligible Under the Fund...
The Act makes clear that only individuals who are "physically
injured" may file a claim with the Fund. Thus, all the corporations,
businesses and property owners who suffered devastating losses in the World
Trade Center cannot file claims with the Fund.
Believe it or not, the definition "physically injured" is open to
interpretation. Thus, those who were not harmed physically but were
emotionally or mentally traumatized by the horrendous events on that morning
may not be eligible claimants under the Fund. Some courts have ruled that the
physical manifestations of post-traumatic stress syndrome may constitute a
physical injury. The DOJ suggested in its ANRM, that because this is a
no-fault system, perhaps only "seriously" injured people qualify as
physically injured.
...The "Personal Representative" Requirement May Cause
Trouble...
Individuals physically injured are the proper parties to file personal
injury claims. Which of the survivors in death cases are entitled to file
claims within the Fund? Each state has different laws as to who may file a
claim for the death of loved one. Some countries allow a broad category of
survivors to claim for the death of a loved one. The Act designates the
"personal representative" as the only individual authorized to file
a death claim, but it doesn't define "personal representative" or
specify whether a survivor's home law should interpret that important
assignment. Under various state wrongful death laws, heirs of the decedent may
file claims directly. In some states heirs may file indirectly through a legal
representative, not necessarily designated as a "personal
representative."
Who is qualified to act as a personal representative? Can one
representative act without conflict on behalf of all heirs and survivors who
are entitled to claim? The DOJ is currently seeking comment from the public on
dealing with this problem, one that is not easily resolved. Each of the
survivors of a person who died may have different or competing damage claims.
What if a young professional who died was divorced and remarried? The
decedent's minor children from a prior marriage may have pecuniary loss claims
for support in conflict with the new spouse's claims for pecuniary support.
What if some of the heirs want to opt out of the Fund and pursue litigation
while other heirs want to file claims within the Fund?
...Major Controversy Exists Over the Collateral Source Reduction
Requirement...
The Act requires that the special master shall reduce the amount of
compensation paid under the Fund by the amount of collateral source
compensation the claimant has received or is entitled to receive. This is a
real eye-opener for trial lawyers. In most states a tort victim is entitled to
collect compensatory damages through the legal system and can still keep any
insurance, disability payments, workers compensation or other collateral
benefits, etc. The tort victim can keep such collateral source compensation as
long as it comes from a source independent of the wrongdoer. Lawyers know this
principle as the "Collateral Source Rule."
The idea behind the collateral source rule is that if an individual has had
the foresight to make arrangements for life insurance, health insurance and
disability insurance, or any benefit payable as a result of injury or death,
the individual should not be deprived of the benefits because he may be able
to obtain compensatory damages. Similarly, if victims have the good fortune to
receive charitable donations or federal, state or county benefits, they should
keep them to help with their suffering. In typical cases, why should a
wrongdoer get to offset the victim's independent benefits against its own
monetary liability for causing the injury?
The collateral source rule has been attacked by the insurance industry as a
windfall allowing victims a double recovery. Legal commentators suggest that
there may not be a double recovery because victims usually do not recover full
compensation for their injuries by settlement or even in the courts. Some
believe that if there is to be a windfall to the plaintiff, it is preferable
to giving the defendant a windfall by relieving him of any of his monetary
liability.
The controversy over the collateral source rule has resulted in tort reform
legislation in some states seeking to force injury and death victims to
disgorge other collateral source benefits they receive if at the same time
they receive a damage settlement or judgment in court. For example, the Ohio
Legislature passed a law requiring the subtraction of collateral source
benefits but that legislation was overturned by the state Supreme Court.
During development of the Act, partisan disagreements erupted when rushing
to draft the victim compensation Fund provisions. Republicans wanted a
collateral source compensation offset requirement in the Act and were able to
prevail on this point. As a result, the Act defines collateral source as
"all collateral sources including life insurance, pension Funds,
death benefit programs, and payments by federal, state or local governments
related to the terrorist-related aircraft crashes of September 11, 2001"
[emphasis added]. This is not good for those victims who had the foresight to
pay premiums for life insurance and disability insurance or who have
retirement funds or entitlement to workers compensation and other benefits
that they expect to receive separate from any legal claims they have.
Lawyers representing victims who have significant collateral sources may
consider advising their clients about the option to file lawsuits in the
courts to avoid this reduction.
...Will Victims Be Denied Claim Recovery To The Extent They Receive
Charitable Donations?...
Charitable organizations have raised hundreds of millions of dollars with
promises to the donors that the money would be given to the victims of the
September 11 disaster. Charitable donations for the victims of a disaster
would normally fall within the definition of collateral source compensation
under many states' laws. Survivors would normally get to keep the donations
and still pursue legal claims. Instead, tort reform-minded Members of Congress
decided to further their agenda through the Fund. The Act says that the special master
"shall" subtract collateral source benefits. Because the definition
includes "all collateral sources," the Attorney General and the
special master are under a congressional mandate to subtract all collateral
benefits. As one result, an enormous political and public relations nightmare
is developing over the question of whether any donations given to the victims
out of various charitable funds will be offset against the recovery from the
Victim Compensation Fund. The DOJ has already issued press releases suggesting
that, despite the collateral source requirement in the Act, they would prefer
not to treat charitable donations as collateral sources under the Fund.
What if the Attorney General allows the victims who file claims with the Fund
to keep only the charitable donations but not other collateral sources? It
would seem unfair to subtract the collateral sources of those victims who had
the foresight to buy life insurance, disability insurance, etc., or the right
to receive worker's compensation but allow others to keep donations. Perhaps
the Attorney General should allow all collateral sources to be kept up to a
certain amount? This would enable people to receive the money they need now
and still file a claim to obtain full compensation from the Fund. Such a
compassionate compromise would reduce the incentive to file a lawsuit and
thereby fulfill the policy goal of the statute -- to protect the airlines.
...The Right To Opt Out Of The Fund And File a Lawsuit...
The Act allows a potential claimant to opt out of the Fund and pursue
litigation in federal court and it created an exclusive federal cause of
action for the September 11 cases. Only one court is designated for all of the
lawsuits resulting from the September 11 disaster -- the U.S. District Court
for the Southern District of New York. Victims will have to file their federal
lawsuits in Manhattan and will have to comply with special federal procedures
designated by the judges of the Southern District of New York.
Additionally, the Act makes clear that any lawsuit must be evaluated under
the substantive laws of the place where the air crashes occurred on September
11, unless inconsistent with federal law. Thus, the September 11 lawsuits will
be covered by New York, Pennsylvania or Virginia substantive law, including
those states' choice of law rules.
Many expect that survivors of New Yorkers killed in the World Trade Center
disaster will choose to file claims with the Fund instead of lawsuits in the
federal court in Manhattan. New York lawyers are saying that New York law in
death cases is not as generous as the provisions of the Fund. According to New
York lawyers, survivors of a New Yorker who has died may recover their
economic losses but have no right to recover their non-economic losses.
...Will Lawyers Advise Clients to file lawsuits?...
Lawsuits take years. Congress has promised that, within 120 days from
filing a claim, the special master will approve claims by eligible individuals
for compensation under the Act and will pay the compensation to the survivors
20 days later.
The major airlines involved in the disaster of September 11 are reported to
have "only" $3.2 billion of insurance each available to cover the
losses resulting from the crashes on that day! (I never thought the word
"only" could be used with those numbers.) Because the aircraft and
ground victim losses are estimated to exceed $11 billion, the only place where
a September 11 victim can be sure to get compensation is from the Fund!
Lawyers who advise the September 11 victims to forego filing a claim with
the Fund and to pursue litigation in the court must carefully analyze all of
the issues confronting such victims advantages to litigation. Some situations
which will require particular scrutiny by lawyers include:
- Survivors covered by state laws allowing recovery of the same losses as
the Fund but without the procedural limitations that may be imposed by the
DOJ;
- Survivors who have most of their potential recovery swallowed by the
Collateral Source Compensation reduction;
- Survivors who may have a good chance at recovering all of their damages
by settlement from an airline defendant's insurance coverage;
- Survivors who may not agree that a "personal representative"
approved by the Fund will adequately present their claim;
- Survivors who may be disqualified from eligibility under the Fund even
though they were injured by the disasters.
Even if lawyers determine that clients may get more money through
litigation, the rapid payment and certainty of payment offered by the Fund are
compelling considerations. These factors must be weighed against the
difficulty of getting settlement or judgments through the courts, the time
delay, the sufficiency of insurance or assets to pay settlements, and the
further uncertainty of collecting a judgment against the certain culpable
defendants. Further, lawyers must investigate the facts to determine if they
can prove liability.
Who Is Legally Liable For The September 11 Disaster?
Are the terrorists the only causes of these crashes? Do other entities have
legal liability? The survivors who choose to file a lawsuit will have to prove
the legal cause or causes of their injuries and probably, the percentage of
fault of each liable party.
The Airlines...
The airlines would be the focus of any litigation. However, many lawyers
suggest that it would be difficult to prove that the airlines should have
foreseen and prevented the deaths on the ground. Arguably, the airlines could
be legally liable for injuries to their own passengers; the likelihood of a
terrorist attack on an airliner's occupants is not unforeseeable. Pan American
Airlines was held liable for its failure to use adequate screening and
security measures to prevent terrorists from smuggling a bomb on board Pan Am
Flight 103. As common carriers, the airlines have the highest duty of care for
their passengers. They are legally responsible to ensure that the aircraft is
airworthy in all respects before flight.
The carriers may be legally responsible if they have negligently allowed
dangerous passengers to board the aircraft. The airlines also may be held
liable if they are negligent with regard to their responsibilities for airport
screening and baggage handling. Although the airlines often hire private
companies to do the screening, they may still be legally liable for the
negligence of those companies. Arguably, the airline passenger and baggage
screening duty is nondelegable. The Act caps airline monetary liability
exposure at the limit of their liability insurance, the $3.2 billion noted
above. Lawyers will be forced to look for other deep pockets.
...Security Companies...
Who else might be legally liable such that survivors may sue for the deaths
and injuries of September 11? Security companies may be subjected to intense
legal scrutiny as to whether they failed to properly screen the terrorists.
We do not have all the evidence from the accident investigations into the
cause(s) of the September 11 crashes. Preliminary indications suggest that the
terrorists used box-cutters to commandeer the aircraft. Were bombs or other
devices smuggled aboard the aircraft? FAA security regulations apparently
allowed knives up to four inches in length to be carried aboard airliners on
September 11. Accordingly, the question must be asked whether even security
personnel failed to comply with FAA regulations. Questions also exist as to
whether the terrorists created any suspicions at the airports that would have
caused prudent security personnel, following norms in effect on September 11,
to suspect the terrorists. Even if security individuals did the minimum
expected of them by the FAA, the companies that screen for airlines should be
held to a much higher industry standard (the highest duty of care).
But even if the security companies were held legally liable for the events
of September 11, their insurance will probably be insufficient to pay all of
the damages. Victims may consider lawsuits against the airports, depending on
whether there are facts to suggest that the physical security of the airport
was actually compromised by the terrorists.
...Others...
Lawyers representing World Trade Center victims may suggest that the
lessors or lessees of the property were negligent with regard to the
evacuation plan for the building or the design and construction of the towers.
Product liability lawyers may suggest that the aircraft were not designed
adequately to withstand hijacking! Is there any evidence yet that the
terrorists broke through the cockpit door and defeated the minimal security
systems in place on board the aircraft in order to achieve their objectives?
...Uncle Sam...
Is the United States government a legal cause of the September 11 disaster?
The FAA has been criticized
for many years for failing to establish higher minimum security standards for
air carriers in passenger and cargo screening. Meanwhile, news reports
suggest that the FAA has repeatedly been put on notice over the last few years
that it was pitifully easy to take over an airliner. The crescendo of
international terrorism against the United States increased recently but the
safeguards did not.
Post-disaster news reports indicate that many of the terrorists were in the
country illegally. Those who were here legally were not being properly
monitored despite known ties to terrorists groups. The performance of many
agencies including the U.S. Customs Service and the Immigration and
Naturalization Service can be called into question.
The United States government can be sued for the negligence of its
employees in causing death and injury in airline crashes. The Federal Tort
Claims Act makes the United States liable as if it were a private person for
the negligence of its employees. However, the United States government has
special immunities and defenses to protect itself in cases like this. If
litigants are able to prove that employees of the FAA, the Customs Service,
the Immigration and Naturalization Service or any investigative agencies were
negligent in carrying out their responsibilities, they could sue the United
States. However, the United States could raise the "discretionary
function exception" to the Federal Tort Claims Act as a defense. The
discretionary function exception, as interpreted by the United States Supreme
Court, protects discretionary decisions involving judgment from court review.
Even if the discretionary decisions of government employees were highly
negligent, the United States cannot be held liable.
...And The Terrorists
Certainly the most responsible parties may be the estates of the hijackers,
Osama Bin Laden, Al-Qa'eda individuals, the Taliban Regime or other financial
supporters of the terrorism. Even if a judgment is obtained against the
terrorists or a terrorist regime, it probably will be uncollectible. Foreign
countries that aided and sheltered the terrorists are theoretically liable
under a recent amendment to the Foreign Sovereign Immunities Act. Victims may
sue a foreign government that has sanctioned acts of aircraft sabotage;
however, only countries that have been designated as sponsors of terrorism may
be sued. Incredibly, Afghanistan has not yet been designated at this writing.
Even if assets of terrorists or a foreign government that sponsors
terrorism are seized, questions remain as to whether lawsuit judgment
creditors may be able to collect from those assets and how long they may have
to wait to get at them.
Conclusion
Anyone who is a survivor or victim of the September 11 disaster considering
a lawsuit should consult with an attorney experienced in wrongful death cases
and complex litigation matters before making a decision. Even those bent on
filing a claim with the Fund may benefit from the advice of an attorney
experienced with losses suffered by the survivors.
The American Trial Lawyers Association (ATLA) has suggested a moratorium on
civil lawsuits resulting from the September 11, disaster. ATLA is also
sponsoring a program for attorneys to volunteer to help Fund claimants without
a fee. The delay on lawsuits suggested by ATLA seems prudent at this time.
Nonetheless, the Fund does not provide for any advance payments for those who
have suffered in this disaster. Some may need charitable donations
immediately. Economic necessity may justify filing a rapid claim with the Fund
before regulations and the Attorney General promulgates procedures.
It may take longer to see how the problems discussed in this article are
resolved. If survivors can wait, they should seek advice from trusted
attorneys to decide whether the Fund is best for them or whether they should
opt out and pursue litigation. I suspect that most lawyers will want to see
how the Fund works before recommending a commitment by their clients.
NOTE: The issues discussed in this article do not constitute
legal advice. My objective is to alert you to some common issues so that
you can avoid or minimize legal trouble. Anyone with an aviation law
problem should be guided by the advice of his or her lawyer, under
applicable federal and state laws, after a full and confidential
disclosure of all relevant facts.
-- Phil
Phil
Kolczynski is a practicing aviation lawyer who manages his own law firm in Irvine,
California. His national practice concentrates on aviation, product liability
and business litigation. Phil teaches evidence, product liability and aviation
law at the University of Southern California Graduate School of Aviation
Systems and Safety Management. He chaired the 1990 ABA National Institute on
Aviation Litigation in Washington, D.C., and has spoken nationally at numerous
aviation litigation symposia. Prior to moving to California in 1983, he was a
trial attorney in the Aviation Unit, U.S. Department of Justice, Washington,
D.C., and the Litigation Division, Office of the Chief Counsel, Federal
Aviation Administration, Washington, D.C. Before entering law school, he was a
Marine Corps Captain and F-4 Phantom Pilot. He is a Commercial Pilot with
instrument and multiengine ratings. Be sure to check
out Phil's Web site.
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