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photo: The husband of Kristen Breitweiser, center, died at the World Trade Center. Steve Push, right, lost his wife, Lisa Raines, in the Pentagon attack. (Robert A. Reeder -- The Washington Post)
9/11 Families Slow to Seek Compensation
Some Weigh Lawsuits; Others Can't Face Task
By Lena H. Sun
Washington Post Staff Writer
Wednesday, September 10, 2003; Page A01
Two years after Congress created a multibillion-dollar fund for victims of the Sept. 11 terrorist attacks as a way to avoid massive lawsuits against the airlines, nearly 60 percent of families of the dead have yet to file claims, officials said.
In many cases, families have not acted because they are still overwhelmed by grief and cannot face the emotional pain of preparing a claim, while others are contemplating lawsuits against the airlines.
Yesterday, a federal judge in New York said families could proceed with existing lawsuits, a decision that may encourage some relatives to bypass the federal fund. Families that receive an award from the Sept. 11th Victim Compensation Fund give up their right to join the litigation, which accuses the airlines of negligence for inadequate security measures.
As of last week, claims to the federal fund have been filed for 1,273 of the 3,016 people who died at the Pentagon, at the World Trade Center and on the airplane that crashed in Pennsylvania. Among the unknown number who were injured, 1,045 have filed claims.
With about three months to go before the Dec. 22 deadline, the special master in charge of the fund, Washington lawyer Kenneth R. Feinberg, has placed half-page notices in major newspapers and is traveling around the country to encourage families to seek compensation from the fund. The program, which has no cap, has paid out more than $633 million, with awards to families of the dead averaging $1.6 million.
Sen. Patrick J. Leahy (D-Vt.) yesterday introduced legislation to extend the filing deadline until the end of 2004. But some lawyers and family members argue against the legislation, saying it may cause families to further postpone filing, and the proposed extension could fail because of budget constraints.
Most of the people who have not sought an award from the fund are struggling with grief, fear and procrastination, Feinberg and family members said.
"They are still intimidated by the process and, specifically, the part where they have to be engaged in a discussion about the value of their loved one," said Tom Roger, president of Families of Sept. 11th, an advocacy group.
One of the most difficult barriers has been an action some lawyers are recommending: writing a personal statement or taping a video describing the impact of their loss.
Donn Marshall, whose wife, Shelley, 37, a Defense Intelligence Agency budget analyst, died in the Pentagon, has been trying since the beginning of the year to write her biography, at the recommendation of his pro bono lawyer. But he has been unable to put down a single word.
"For me, you couldn't convey the loss adequately in words or pictures," said Marshall, 38, the father of two young children. "How do you get started, and how do you do justice to her?"
He hopes to file his application in the next few weeks. But simply gathering the required paperwork -- wage statements, tax returns, the insurance beneficiary form -- has been gut-wrenching.
"Every now and then I come across something with her signature," he said. "And that's kind of rough."
The fund, the first of its kind in the aftermath of an American disaster, was approved shortly after the attacks as a way to help surviving families and bail out the airline industry. The tax-free payments are based largely on the lost earning power of those killed in the attacks, as well as on such intangibles as pain and suffering.
Feinberg said last week that the total cost of the program is likely to be $3 billion to $4 billion, less than the original estimate.
The awards for death claims have ranged from $250,000 to $6.1 million, Feinberg said. Personal injury payments have ranged from $500 to $6.8 million.
At least 69 lawsuits have been filed against the airlines and others by a variety of plaintiffs, including relatives of passengers on the planes. The airlines and other defendants, including the Port Authority of New York and New Jersey, which owns the World Trade Center property, and Boeing Co., which built the planes, argued that they were not responsible for injuries caused to those on the ground because the attacks were unforeseeable.
U.S. District Judge Alvin Hellerstein disagreed.
"While it may be true that terrorists had not before deliberately flown airplanes into buildings, the airlines reasonably could foresee that crashes causing death and destruction on the ground was a hazard that would arise should hijackers take control of a plane," he wrote.
Spokesmen for United Airlines, American Airlines and Boeing said they would appeal.
Many families had been awaiting the judge's decision.
"This ruling allows the families the option of litigation," said Ken Nolan, whose New York law firm represents 130 to 140 families, most of whom are planning to sign up for the fund. "Emotionally, it's a tremendous victory for the families who have always believed that the airlines, the Port Authority and the building owners failed them on September 11th."
But he cautioned that the dilemma for families has not really changed. "This doesn't mean families are assured of winning," he said. "It just means they haven't lost yet."
Residents outside New York who want to preserve their right to file a lawsuit must do so by tomorrow, the second anniversary of the attacks. (New York state residents have an additional six months to file.)
Feinberg and many other lawyers have encouraged families to take advantage of the fund because litigation would be lengthy and far riskier.
Nevertheless, some families view a lawsuit as one way to focus attention on problems with airport security.
Kristen Breitweiser, whose husband died in the World Trade Center and who co-founded Sept. 11th Advocates, said other families have told her that by signing up for the fund, "you're removing the ability to hold anyone accountable. . . . Where is the impetus for government agencies to be responsible for protecting their citizens?"
Feinberg said that in the end, he hopes most families will choose to receive an award from the compensation program.
But even after making that decision, it is difficult for families to get started gathering paperwork and taking other steps to file for the fund.
Larry Stewart, past president of Trial Lawyers Care, a group of 1,200 lawyers who have volunteered to aid the victims' families free of charge, said one woman whose husband died at the World Trade Center has called him at least half a dozen times this year. Each time, she tells Stewart she is "finally ready" to file a claim. But she has yet to send in the paperwork, "because everything reminds her of her loss."
In addition to the documentation, the pro bono lawyers suggest that families make a video or write a statement "so the full impact of the loss can be explained" to Feinberg.
"The real guts of these claims is the family situation, and there is no cut-and-dried way of doing that," Stewart said.
Steve Push of Great Falls, whose wife, Lisa Raines, died at the Pentagon, said that for a long time, he could not face cleaning out his wife's closets. Then this spring, he met a woman, Debra LaValle, whose husband had died of a heart attack in April 2001. They began dating, and she helped him sort out his wife's clothes. They bought a new home and got married Aug. 30.
"It's a very personal choice," he said. "People are not quite sure what to do. Should they sue? Should they do nothing? There's enough questions still out there."
Push had an initial session with Feinberg and is gathering the required documentation. He may receive his award this year.
Staff writer Keith Alexander and researcher Bobbye Pratt contributed to this report.