THE 911 VICTIMS COMPENSATION FUND; ONE SUCCESS OR FUTURE ADR MODEL

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1 THE 911 VICTIMS COMPENSATION FUND; ONE SUCCESS OR FUTURE ADR MODEL Carroll E. Dubuc Carroll E. Dubuc & Associates, P.C Lee Highway, Suite 490 Fairfax, VA

2 Carroll E. Dubuc Carroll E. Dubuc & Associates, P.C Lee Highway, Suite 490 Fairfax, VA Carroll E. Dubuc is an attorney, President of Carroll E. Dubuc & Associates, served as a Department of Justice Hearing Officer for the 911 Victim s Compensation Fund and he is also a mediator and arbitrator, certified in the Virginia court system, Circuit Civil, Circuit Family who works on court referred and private mediations. He has also served as Executive Director of Aviation Mediation & Arbitration Providers, L.L.C., an organization which provided mediation/arbitration services to the aviation industry. He has arbitrated for the National Association of Securities Dealers, the New York Stock Exchange, the National Arbitration Forum, Attorneys Arbitration Services Inc., and the American Arbitration Association. For more than 35 years, Mr. Dubuc s major specialty was litigation, having acted as lead trial counsel in numerous well-publicized national and international aviation accident and product liability cases, including complex multiparty national litigation and has written numerous articles and having lectured widely in those fields and more recently on ADR issues. He also served as a Director and Corporate Secretary of a large aviation insurance pool and is presently Chair of the Defense Research Institute ADR Committee, a member of the Board of Directors of the Virginia Mediation Network, the Counsel for the Virginia Bars Joint ADR Committee, former Chair of the Federation of Defense & Corporate Counsel ADR section and former Chair of the International Association of Defense Counsel ADR Committee. He is a member of the Bars of New York, the District of Columbia, Virginia, the Fairfax and Arlington Bar Associations, the United States Supreme Court, and numerous U.S. Courts of Appeals, Association of the Bar for the City of New York, the International Bar Association where he was Vice-Chair of the Travel and Tourism Committee, the International Society of Air Safety Investigators and the Association of Defense Trial Attorneys. 2

3 THE 911 VICTIMS COMPENSATION FUND; ONE SUCCESS OR FUTURE ADR MODEL* CARROLL E. DUBUC** CARROLL E. DUBUC & ASSOCIATES, P.C. FAIRFAX, VIRGINIA I. INTRODUCTION The tragedies of September 11, 2001, that destroyed New York s World Trade Center, damaged the Pentagon, and killed thousands in those buildings and in the four hijacked and crashed aircraft used to perpetrate the destruction, have generated numerous Congressional initiatives to compensate the victims and also some designed to prevent the reoccurrence of such devastating terrorist activity. Many of these new laws and their attendant regulations have been directed toward better airport and aircraft security through the federalization of airport baggage screeners and increased aircraft security measures. Congress has also created provisions for operating and insurance subsidies for the airlines which would have been in economic jeopardy as a result of these events, instituted a new arbitration procedure as an alternative to litigating anticipated claims by victims or their next-of-kin, and established a new Transportation Security Administration ( TSA ). This article addresses the procedures and results of the 911 Victim s Compensation fund ( VCF ), which was established in the federal legislation enacted shortly after 911, principally with respect to this ADR Model for the disposition on nofault basis; peripherally the discussion addresses the obligations and liability exposures of **Carroll Dubuc was appointed by the Department of Justice as a Hearing Officer for the 911 Victims Compensation Fund and headed numerous cases. 3

4 transportation and non-transportation commercial entities such as aviation-related companies, railroads, cruise ship terminals, trucking companies, real estate companies, and owners and lessees of commercial buildings, sports stadiums, arenas, and retail shopping malls. Integral to this latter issue is consideration of whether those entities should be required to implement security protocols similar to those now mandated for airlines and airports, and whether the economic trade-off of providing minimal security is not a risk for extensive liability in the event of a terrorist attack because the resulting claims would be disposed of through a similar no-fault federal compensation fund! Such a trade off may depend on to whether these aviation industry security concepts, already applicable to transportation and commercial entities only in high risk areas such as New York, Washington, D.C., Los Angeles, San Francisco, and Chicago, should be required for similar risks in more remote, lower profile locations because a victims fund might not be available. II. THE 911 VICTIMS COMPENSATION FUND PROCEDURES Within eleven days after the tragedies of September 11, 2001 (hereinafter 911 or 911 events ), the United States Congress enacted the Air Transportation Safety and System Stabilization Act ( ATTSSSA ) (pub. L. No , 115 Stat , 2001), which established the VCF creating an exclusive federal cause of action, but limiting the air carriers liability for the victims who decided to litigate their claims, and providing for a no-fault quasi arbitration/mediation procedure for the resolution of the claims of those victims who chose to waive their rights to litigate. In ATTSSSA the liability of the airlines was limited to the amount of liability insurance in effect on September 11, a substantial amount of $1.6 Billion per accident (determined by the insurers to be four 4

5 occurrences under the insurance contracts- total 6.4 billion dollars)? However this amount was inadequate to cover all of the potential claims of the World Trade Center, but it probably was enough to cover the Pentagon and Pennsylvania occurrences. The total exposure of the insurers for 911 was estimated to be about billion dollars (WSJ ). One of the catalysts for the rapid Congressional action on the ATTSSSA legislation was the financial threat to the economic stability of the nation s air transportation system, and the liability insurance capacity of the insurance companies for other types of losses in addition to the 911 tragedy (i.e. hurricanes, floods, fires, auto claims, property damage, etc.). Victims eligible to bring claims within the VCF procedures included the next-ofkin of persons on the hijacked aircraft or in the vicinity of the crashes, and persons in the vicinity of the crashes who suffered physical harm, 405 (c) (2). These claimant s had the option of filing a federal lawsuit, under the normal procedures applicable to airline disasters, in the United States District Court for the Southern District of New York, or waiving the right to litigate and proceeding with the arbitration procedures established in the Act 405 (c) (3) (B) I; 408 (b) (3). Victims filing a lawsuit would be required to establish negligence on the part of the airlines, security companies, airports, etc in order to recover, unless the victim was an airline passenger holding an international ticket, in which case, the Warsaw Convention Treaty, would establish strict liability, (Convention for Unification of Certain Rules Relating to International Transportation by Air, October 12, STAT 3000, as amended September 28, 1998, S.P. Exec. Rep ; now Montreal Convention). Recoveries in litigation, including punitive damages, would be available and would generally be unlimited to the extent insurance coverage was 5

6 available. Once insurance coverage had been exhausted, however, victims choosing to litigate might be awarded judgments, without the ability to collect from the insurers or the insured. None of the legislation previously mentioned requires the government to subsidize such an individual unsatisfactory recovery. Alternatively, victims filing claims under the VCF arbitration procedure avoided the liability issue completely, and instead arbitrated only the issue of damages. Recovery for punitive damages was excluded by ATTSSSA, and the federal government paid the entire damage awards from general funds irrespective of any commercial insurance coverage limitations. The Rules for the VCF Arbitration, released in March of 2002, indicated that families of married decedents with children would receive at least $500,000 in damages, and families of single decedents would receive about $300,000, before deducting collateral sources with a minimum recovery of at least $250,000 per decedent after such deductions (Final rule 67 Fed. Reg. No. 49, p , 104 et. sq. March 13, 2002). The guidelines for determining damages under the ATTSSA s arbitration provisions included consideration of all economic losses, including pecuniary loss of income, medical expenses, lost services, burial costs, and loss of business and employment opportunities The guidelines also allowed recovery for noneconomic losses such as pain and suffering, mental anguish, loss of society and companionship, loss of consortium, inconvenience, and physical impairment Non-economic losses were presumed to be $250,000 for a decedent, and an additional $100,000 for a spouse and each dependent child /45. These guidelines were considerably more liberal than those contained in most state wrongful death statutes. 6

7 Damages awarded under the arbitration process were reduced by the amount of any collateral source funds available to the victim s family, such as life insurance proceeds, pension proceeds, and possible other company death benefits. Ken Feinberg, the Special Master appointed to oversee the arbitration process, and the US Department of Justice ( DOJ ) indicated that recoveries under the arbitration procedure would not necessarily parallel those in other airline accident or mass tort cases. The families of victims choosing to arbitrate submitted written claims and advance payments of $50,000 were available for a deceased victim, and $25,000 for a severely injured victim, upon application A two-year statute of limitation was established for the VCF claims and at which the date the regulations were published and it began to run when the regulations were published on, so that all VCF claims had been filed before December 21, 2003 and resolved on or before June 15, The ATTSSSA did not provide a statute of limitation for litigated claims, indicating that this issue should be governed by applicable State conflict of law rules. III. THE 911 VICTIMS COMPENSATION FUND STATISTICS The regulations developed by Special Master Ken Feinberg established procedures which provided a no-fault compensation program for economic and noneconomic loss by the victims and their families, which was calculated from predetermined economic matrixes based on family size, family loss, and family needs, but adjusted downward by collateral source payments from life insurance companies, employee pension funds, etc. An example of the maximum matrix calculation, based on a victim age 30, earning $231,000 per year, survived by a wife and two children, would yield an award of approximately $4.3 million; lower income, higher age or fewer 7

8 dependents would receive a lower award ($500 to $900,000). Although higher income (earning $600,000 to $2 million annually) victim s claims were ultimately calculated on a higher income model, the highest death award was approximately $7.9 million. Some personal injury claims such as burn victims, generated awards slightly over $8 million. Victims submitted their claims with supporting data to receive an award, and could then ask for an appeal hearing if they were dissatisfied (Track A); or request a hearing de novo, obtain an award, and appeal if dissatisfied (Track B). The time to file a claim with the 911 VCF expired on December 22, 2003, and all claims were resolved on or before June 15, Although final statistics are still being processed, of the 7,400 claims filed with the VCF, 5,558 were resolved, and approximately 1,842 were rejected or withdrawn (not within the WTC area, no injury with 72/96 hours of 911, pre-existing, etc.). There were 5,558 awards rendered, 2880 for death claims, and 2678 for personal injury claims. The average death award after offsets was $1,877,084 and ranged from $250,000 to $7,500,000. The personal injury awards ranged from $500 to $8,700,000. There were a total of 3,526 Hearings (1,668 Track A and 1,858 Track B) with award letters issued in those cases. Initially the Department of Justice appointed a dozen Hearing Officers, including the writer, to assist the Special Master with these hearings; before the last rush of cases there were approximately 50 Hearing Officers involved in the process. These rough early statistics suggest that although many of the 911 Victims accepted the initial awards, there were a high percentage of claims where the victim/family considered the initial award unsatisfactory resulting in a hearing or an appeal in 3,526 out of 7,400 cases or 47.6 percent. (Interesting comparisons are statistics 8

9 suggesting only 8-9 percent of state court cases, and 3-4% of federal court cases go to trial!). In some cases there were pre-hearing discussions with the claimants, (by the Special Master and/or the Hearing Officers) which took the forum of a quasi mediations to resolve not only economic issues, but also the amounts of collateral offsets, intra family disputes as to who could/should claim the award, significant other/same sex partner claims, etc. And the adjustment of matrix awards, and even awards after hearing, took the form of mediated settlements in order to attempt to reach closure of many cases. This was a necessary step because the Special Master s regulations were challenged in the New York Federal Courts, and although the Special Master was upheld, Colaio v. Feinberg, 262 F. Supp 2d 273 (S.D.N.Y. 2003), Aff d (Schneider) 345 F. 3d 135 (26. Cir. 2003) the concept of future challenges remains, particularly with respect to the inadequacy of the awards by the families of high income victims. Using the VCF procedure presented a difficult choice to victims or their next-ofkin because of the conflict in both benefit and result. For example, the family of a highincome decedent with a large life insurance policy and pension plan could receive an expedient but diluted arbitration settlement because the collateral source rule might reduce the resulting damage award substantially. Litigation, on the other hand, assuming a case could be proven (see infra), could produce a substantial damage award if adequate insurance coverage existed but might take a number of years to resolve. Because damages awarded under the arbitration procedure appeared to form a matrix based on the decedent s actual and collateral source income, the family of some a highincome decedents elected litigation in order to receive a recovery commensurate with the loss of the decedent s income, realizing that it was doubtful that damages awarded from 9

10 the Victims Compensation Fund would approach the recoveries awarded to the families of deceased passengers in other aviation disasters. However, an important element of ATTSSSA was that if a victim filed a lawsuit, the 911 Fund arbitration/mediation process was no longer available, and that the victim/family would not know the amount of the VCF award before having to abandon the litigation option, an issue discussed, infra. IV. WILL THE VCF MODEL BE USED AGAIN? There was other legislation enacted as a result of 911 and indeed ATTSSSA included a $15 billion subsidy for the airlines, and later in order to protect some of the other insurances infrastructure, transportation entities and insurance companies Congress passed the Aviation Transportation Security Act (Security Act) on November 19, 2001 (Pub. law No , 115 Stat 597) expanding the liability limitation to other entities, airports, manufacturers, etc. (115 STA 230) and also increasing the scope of possible damage recovery for the 911 Victims, by permitting lawsuits, against terrorists and terrorist nations, without waiving the right to make claims to the VCF and the Patriot Act (Uniting and Strengthening America by Providing Adequate Tools to Intercept and Obstruct Terrorism, Pub , 115 Stat 272 (2001), was enacted to provide some terrorism investigation guidelines, and also defined terrorism for purposes of triggering certain government involvement in the application of liability insurance funding. The Britannica dictionary defines terrorism as: (1) the act of terrorizing; (2) a system of government that seeks to rule by intimidation, and (3) unlawful acts of violence committed in an organized attempt to overthrow a government. This definition suggests that an intent to achieve some political gain or to intimidate political adversaries is a necessary element of an act of terrorism. That concept is part of the definition of a 10

11 terrorist act which when certified as a terrorist act by the Secretary of State of the Treasury would trigger the United States government war risk insurance guarantees. The Federal Government ultimately provided in the Terrorism Risk Protection Act and the National Terrorism Reinsurance Fund Act that the Federal Government would provide reinsurance up to 90% of claims arising from terrorism after 911, and the liability limitation referenced in ATTSSSA was extended to the aviation security companies in the Homeland Security Act of The foregoing brief summary provides a backdrop to the review and consideration of the proceedings by the 911 VCF and the Victim s motivations with respect to the claims arising from 911. It also provides clues to what appears to be a Federal involvement in any claims by victims of possible future terrorist activity (perish the thought but nevertheless prepare). The reason for ATTSSSA in connection with 911 events may well be perpetrated into future events because the need for economic protection of various national infrastructures may still be required, as well attempts to avoid litigation and congestion in the court systems. Since the Federal Government is now the reinsurance underwriter for terrorism insurance, it would be interested in keeping claims out of the Tort aspect of the Federal judicial system. In that regard, it is relevant that there were only 350 lawsuits filed in the New York U.S. District Court for the Southern District of New York, the exclusive venue for lawsuits established by ATTSSSA. Many of those claimants exercised their option and ultimately dismissed their lawsuits, and filed claims with the 911 Victims Fund, but some of the lawsuits were duplicative being filed by different family members (or different attorneys). Of those cases filed, 114 were airline passenger claims, and the remainder 11

12 were ground damage, ground death and ground personal injury cases (many later filed with the 911 Fund). The theories of recovery against the airlines included breach of duty and negligence in failing to check the terrorists who boarded, and the airports; the security companies failures in security checks of the terrorists; the aircraft manufacturers, and World Trade Center architect and engineers and contractors named as defendants for design defects (i.e. easy cockpit door access, fire resistant, building structure, etc.). However, less than 100 unduplicated lawsuits remain in the New York court and it is anticipated that most if not all of those will be settled. The reason why this writer believes these cases will be settled is that the cost of defense may exceed by far what might be paid in settlements, and the defendants may wish to avoid continued adverse publicity while the litigation proceeds. Perhaps even more relevant is the difficulty for these parties to obtain factual information by documents and deposition discovery of what actually occurred on the security issue in the 911 flights because the Airport Security Company information is precluded from disclosure as Sensitive Security Information ( SSI ), 49 CFR Part This preclusion from disclosure pertains to information that the Transportation Security Administration ( TSA ) determines might reveal a systematic vulnerability of the aviation security system or constitutes a threat to transportation. If the TSA prohibits disclosure, it becomes SSI information, 49 USC 40119, and although that determination can be reviewed by a Federal Court of Appeals, 49 USC (2004), it is doubtful in the current environment of possible terrorist threat that much, if any of the SSI information needed to pursue a lawsuit for 911 claims will be released. Therefore the attorneys for the 911 victims who chose litigation face a significant risk in bringing a case to trial 12

13 because they may not be able to obtain the necessary evidence to prove that one or more of the defendants was actually negligent. The doctrine of resipsa locquitur (the thing speaks for itself) has been forsaken long ago in cases of this kind Polsgraff v. Long Island Railroad, 162 N.E. 99 (NY 1928), a benchmark opinion by Justice Cordozo was a 4-3 decision, wherein there was no regulation prohibiting explosions on the railway platform, as did the security regulation in 911. The absence of foreseability argument by defense counsel in the 911 cases was rejected by Judge Hellerstein, In Re September 11 Tort Litigation, 280. F. Supp. 2d 279 (S.D.N.Y 2003); and in the future should he determine that the defendants must produce the SSI information, or risk a finding of adverse inference that if produced it would be against the defendant s interests, counsel for the defendants then would have a similar dilemma. With this uncertainty that claims/defenses could be established may be a catalyst for settlement of the 911 cases, and suggests that the availability of a no-fault alternative in future cases may prove attractive. V. THE 911 EVENTS HAVE AFFECTED FUTURE LIABILITY ISSUES The enormous concentration of effort and statutory authority surrounding the airline industry suggests that it would be increasingly difficult for terrorists to attempt another aviation-related September 11 scenario. Consequently, law enforcement and transportation security officials have considered alternative terrorist scenarios that might be selected. Although government agencies bear the initial responsibility for preventing further terrorist activity, commercial entities should consider their potential exposure to liability to their business invitees as a result of terrorist attacks. Aviation industry risk managers already have been deeply involved in resolving liability problems, assessing 13

14 future insurance coverage for general third party liability as well as terrorism and war risk, and evaluating security requirements to deal with the terrorist threat. Other transportation entities such as railroads, cruise and container ships, subways, trucking companies, and bus lines are also examining the rules and regulations required in the aviation environment to determine whether these standards should be applicable to their operations. What about the owners and ordinary commercial buildings, sports complexes, recreational facilities, etc. in high risk locations? Will the owner or operator of one of these other entities be able to defend lawsuits initiated by business invitees injured in a terrorist attack? The argument that the attack was not foreseeable or that the government should be responsible for failing to discover the terrorist plot may not work. Furthermore, if one of these entities initiates some security measures, this action may be viewed as tacit recognition of the foreseability of the threat, and may create additional liability if the security measures are inadequate. Congress has provided the airline industry including support entities such as airports and property interests in the immediate ground zero area of the September 11 attackswith insurance protection and economic relief in the form of ATTSSSA. The government, however, may not provide bail-out funds for other entities for future attacks, particularly if it is not certified as a terrorist attack and they fail to initiate any heightened security procedures. Corporate risk managers and their attorneys must therefore be assessing their exposure. In that process, one primary task will be to evaluate the impact of the premises liability law now developing in various jurisdictions wherein the totality of the circumstances is the guideline. A second, and perhaps more difficult, task will be to 14

15 determine security standards for buildings, businesses, sports complexes, and other entities that are not part of the transportation industry, and to evaluate whether the airline model provides appropriate standards for these entities. Meeting that standard would be very expensive, and whether the owner of a commercial building can afford meeting even part of that standard is a significant problem. However, if the exposure was limited by the application of a no-fault, limited liability system such as a Victim Fund the exposure is substantially reduced. In the post-september 11 environment, anticipation of a potential terrorist attack or a non-terrorist criminal attack is a reality in many locations, and failure to have security protocols in place may simplify the required proof of negligence in cases where individuals are injured as the result of such an attack and under circumstances wherein the SSI restrictions are not applicable. Damage awards in such instances may also include punitive damages, if failure to take precautions is deemed egregious enough, because there appear to be no statutory bars to such awards. Although various security protocols have been implemented by a number of non-airline transportation and commercial entities, with varying degrees of success, the nature and scope of security deployed in the aviation industry is clearly absent. If premises liability arising from terrorist activity requires foreseability of the potential harm in order to render the commercial entity liable to business invitees entering the premises, the events of September 11 probably provides that element. Prior to 911 events, isolated criminal activity in buildings or on property would not generally establish liability unless the owner or operator of the property had a special relationship with the injured party. But if a security review suggests possible defects in the process of 15

16 responding to information about potential threats, liability will typically be established. See cases cited in a more extensive study, Dubuc, Terrorism: September 11 Transportation and Premises Liability Trial or Arbitration of Claims, 52 Fed n of Def. & Corp. Couns. Q, 343 (2002). Based upon increased terrorist activity, the blunderbuss of security efforts brought to bear by Congress, and the warnings of federal entities such as the Director of Homeland Security and the Transportation Security Administration, it is clear that government officials believe that future attacks are foreseeable. The President and the Secretary of State have publicly stated that there is a war on international terrorism in progress, and warnings have regularly been issued regarding the need for enhanced security. This belief supports the duty/foreseability standard of "totality of the circumstances" approach recently taken by many courts, (Id, a further summary of cases). Under this approach, information regarding potential or anticipated criminal or terrorist activity, general risk in the particular area of concern, and a failure to exercise reasonable care under these circumstances will typically create liability. Although this discussion leaves several unresolved questions, it suggests by hindsight that given the governmental interests in protecting the Nation s transportation system, there will probably be a similar victims fund processes established for resolution of claims arising out of any future terrorist activity. Given the difficulty in litigating claims from a terrorist caused disaster because of the SSI rules, few lawsuits might be successful, so that the no-fault compensation process of a victims fund may again be an attractive alternative. 16

17 VI. WOULD LEGISLATIVE TINKERING IMPROVE THE FUND PROCESS? As noted, supra, the SSI rules might not apply to the documents and testimony in cases arising from an attack or a non-transportation commercial building, so that litigation might be successful. Therefore, in light of what appears to be a high number of challenges or dissatisfaction with initial awards in the 911 Fund proceedings, some tinkering might make the process more attractive for future cases. Perhaps an initial prehearing mediation process might be developed to provide a cushion for the cases with significant adversarial issues; similarly an appeals process which also utilizes mediation principles, like many of the U.S. Courts of appeal. Indeed some of the awards in the 911 VCF on behalf of higher income victims were ultimately reached by a quasi adjustment process, so that for future cases, some guidelines toward that process might be included in the statute or the regulations. Finally, a better informed choice between litigation and proceeding within the compensation fund procedures would be achieved by disclosure of the presumed award before the victim/family had to choose between litigation and the fund procedures as is the case with the automotive industry model. Indeed, the after-the-fact enactment of arbitration provisions in future fund cases may raise ex post facto questions under Article I, due process questions under Article IV, and deprivation of jury trial questions under Article VII of the United States Constitution. Although these issues were probably thoroughly researched prior to Congressional enactment, it is unclear whether similar legislation would survive a challenge by an injured plaintiff who is forced to seek compensation from a Fund procedure. In fact, the arbitration provisions of the ATTSSSA present another problem: they were enacted without direct or implied pre-event consent to submit to arbitration 17

18 proceedings in lieu of litigation. The Supreme Court s recent decision in Circuit City Stores, Inc. v. Adams, 121 S.Ct. 130L (2001) indicates that virtually any agreement to arbitrate is enforceable under the Federal Arbitration Act; but the operative word, however, is agreement. And fairness is another issue which resulted in a modification of Adams by the 9 th Circuit Court of Appeals. In the writer s experience in another life defending complex multi-district claims arising out of major aircraft tragedies, there were always a few victims who never would agree to a settlement, despite the amounts involved, because they were angry for the loss of their loved ones, and wanted to establish the responsibility of a wrongdoer in litigation. One of the gaps in the 911 Fund model is that there is no responsibility established for the disaster since it is a no-fault system, (although ATTSSSA does contain a subrogation clause). This unsatisfied need for establishing responsibility and closure may complicate the future Fund process wherein responsibility might be established if there were no SSI obstacles, thus suggesting the use of mediation concepts to dispose of the anger overlay which might impede use of the no-fault system. VII. CONCLUSION Despite these observations, the 911 Victims Compensation Fund must be considered a successful process because it disposed of over 97% of the possible death claims and 61% of the personal injury claims (many of which were not eligible). Indeed for the low income/middle income victim and families it was a fair, relatively rapid and tax free, so that their financial needs could be addressed. It permitted the airline and insurance industries to function in a difficult situation, and avoided an enormous congestion in the judicial system. Although the higher income victims/families may have 18

19 some disagreement with the amount of the awards, (which were below expectations based on historical aviation disaster awards), given the difficulties in obtaining SSI data with which to pursue lawsuits, the VCF awards provided substantial tax free relief to those families as well. For this reason, the VCF model may be a viable alternative to litigation for future terrorism claims, and with some minor tinkering could be useful and effective. Indeed, this model might be adjusted to address other types of disaster claims, although the limitations of liability, the caps on insurance exposure, and the SSI prohibitions probably would not be applicable, so that the litigation alternative would remain an attractive alternative. However, a key to the possible future of the Fund concept may be the continuation of U.S. Government involvement as a reinsurer of terrorist events, and the concurrent governmental interest in limiting the exposure of the potential defendants and preservation of the Country s infrastructure. Indeed without the government s participation in terrorism insurance, many business activities such as construction, sale of buildings, sports complex operations, new business endeavors, etc.; which require full insurance coverage, would flounder, and the related business entities would be in financial jeopardy. Litigation against such entities would be possible, but the judgments obtained might be unforeseeable. Therefore re-examination of the advantages of a Fund approach would be a useful alternative to litigation that might have ultimate negative results. 19

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