97 % of 9/11 victims accepted the compensation offered by the September 11 Victims Compensation Fund. But a small number pursued tort litigation despite its delays and risks of loss.
Newsday has reported that 92 of the 95 cases brought by ground victims and airlines passengers have settled for $500 million. The sum is consistent with historic settlement patterns in airline disaster cases. Mediator Sheila Birnbaum, a tort defense-side stalwart, reported that the mediation process of face to face confrontation with airline company representatives was an important, and therapeutic element. In my own practice I found that in wrongful death cases the cathartic element of mediation process was valuable in both achieving settlement and a degree of closure for the families of the deceased.
The 2001 Air Transportation Safety and System Stabilization Act (ATSSA), which created the September 11 Victims Fund also limited the airlines’ liability to insurance in place on 9/11. The measure proves to have worked well, as I predicted it would in my article in Penn State Law Review `Will the Post 9/11 World Be a Post-Tort World?’
The ATSSA, I wrote, “relieves the court of the prospect of helping to drive airlines and aircraft manufacturers into financial ruin. In such a circumstance it will be easier to focus on the fault of the airlines, of the security personnel, and of Boeing. Because of the aggregate damages limits and the compensation of Fund claimants, pressure to reject the imposition of tort liability by the retributive principle will be less compelling. No great disproportion between wrong and harm will be posed by the imposition of liability on the insured defendant manufacturers, airlines, airports, and landlord.”
“The 9/11 ground victims and passengers tort actions, brought by those who have foregone the opportunity for no-fault compensation presents the opportunity for the civic judgments to be made that underlie the appeal and importance of the law of torts: first, assessment of whether the actors (both the aviation defendants and the managers of the WTC) took sufficient account of the interests of others - those in the planes and those on the ground - in their conduct; and second, requiring them to bear the costs that their wrongful conduct imposed on others (within legislated limits which function as limits imposed by the retributive principle).”
“It may be nonetheless that despite, or because of, its doctrinal impurity, the ATSSSA's combination of no-fault social insurance compensation with an optional and limited tort remedy will prove itself to have been a very judicious choice - one which will bring closure, compensation and social, moral tort judgment under tragic circumstances.”
September 11 litigation decisions and orders are available at this page on the Southern District website.
The post- 9/11 tort claims were venued by statute in the U.S. District Court for the Southern Circuit. Judge Alvin K. Hellerstein has handled this mountain of litigation with a judiciousness, compassion, and practicality that warrants the highest praise.
image: Breezy Point Memorial
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