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The regulations covering the compensation of those who lost family members in the Sept. 11 terrorist attacks are getting a thumbs-down review from many lawyers and victims’ families. They are learning that not all victims are created equal. Among those families, perhaps no group stands out more than the families of approximately 400 New York rescue workers who lost their lives saving people from the World Trade Center. Many of the families complain that the law and the new regulations put them at a particular disadvantage. As it’s currently set up, the program will likely leave the families of many emergency workers with no federal recovery money at all. If they opt out of the program and sue in court, on the other hand, the law makes it particularly difficult for police officers and firefighters to recover for death and injuries suffered in the line of duty. It’s a Catch-22 that has left many rescuers’ families disgusted. “I think it’s a disgrace. I think they should amend the law,” says John Lynch, whose son, New York firefighter Michael Lynch, is still missing. Lynch is a spokesman for the 9-11 Widows and Victims’ Families Association, a group that represents families of rescue workers and civilians killed on Sept. 11. Proponents of the plan say it is intended to help families who would otherwise be forced to spend years in court with little chance of any recovery. CATCH-22 Whatever the plan’s faults, firefighters and police may have little alternative to it. It will be difficult enough, plaintiffs’ lawyers say, for rescuers’ families to show that the airlines or some other defendant should share in the responsibility for failing to prevent an unprecedented terrorist attack. Other legal and practical obstacles will make it harder. The Sept. 11 compensation law allows families to sue in court but limits the airlines’ liability to the limits of their insurance coverage — around $1.5 billion per plane. That amount should be enough to satisfy claims from United Flight 93, which crashed into the ground near Shanksville, Pa. It may even satisfy claims from American Airlines Flight 77, which the terrorists crashed into the Pentagon, lawyers say. But estimates of the damage on the ground in New York — to the victims at the World Trade Center, to the complex itself and to surrounding businesses — has been estimated at many billions of dollars. Later legislation placed similar limits on lawsuits against New York City, the owners and operators of the World Trade Center, the manufacturers of the aircraft and the airports from which the doomed flights originated. And even if rescuers’ families could collect from the airlines or another defendant, many plaintiffs’ lawyers say victims on the ground would have a hard time proving the deaths and injuries were sufficiently foreseeable. Rescue workers have an even tougher burden. Under the laws of many states, including New York, firefighters and police officers generally cannot recover for injuries due to negligent acts, subject to limited exceptions. The “firefighters’ rule” is based on the assumption that police and firefighters are paid to confront dangerous situations, which are frequently caused by negligence. Generous death and disability benefits are presumed to fill in the gap. But under the Sept. 11 compensation statute, those generous benefits are deducted from any recovery from the government. At the same time, the award from the Sept. 11 fund, in turn, is based in part on the earnings of firefighters, which is relatively low. For example, Michael Lynch, a firefighter for just a year and a half, was making about $35,000 a year when he died, according to his father. As a result, lawyers say it is likely that some firefighters and police officers will have offsets greater than their awards, resulting in no awards at all. In an interview with The New York Times, Kenneth Feinberg, the special master appointed by the Department of Justice to oversee the compensation program, said he planned to address the problem to make sure no family is left with no award. But lawyers questioned whether the Sept. 11 compensation law gives him the discretion to do so. (Feinberg could not be reached for comment on this story.) The regulations, released Dec. 21, stipulate that: � Money provided by charities will not be deducted from the awards. However, life insurance proceeds, pensions and other death benefits will be. � Noneconomic damages, including pain and suffering, are presumed to be $250,000 plus an additional $50,000 per surviving spouse or child. � Presumptive awards for economic losses are included in a table. Awards increase with income and number of dependents; they decrease with age. Income above $225,000 per year does not substantially increase awards, however. � Eligible claimants must have been killed or injured at one of the crash sites, within 24 hours in the case of a civilian, or within 96 hours in the case of a rescue worker. � The question of who may file on behalf of a dead victim, including the question of whether unmarried partners may make claims, is to be determined under the applicable state’s law. � All eligible claimants may request immediate awards of $50,000 (in death cases) or $25,000 (for injured victims), to be deducted from the eventual awards. The Department of Justice is considering comments to the compensation rules through Jan. 20 and may make changes. According to attorney James Kreindler, some plaintiffs’ lawyers have discussed the possibility of challenging the compensation law as unconstitutional and challenging the regulations as violating the compensation law. “Both of these are going to be very difficult,” says Kreindler. “This is going to be an option of last resort. But the fund is no remedy for a lot of people.” Kreindler’s firm, New York’s Kreindler & Kreindler, represents about 100 Sept. 11 clients, of which about a dozen are the families of firefighters. He predicts that many families will choose to go to court rather than to accept awards that he considers to be a fraction of what they should receive. “It doesn’t have to be great,” says Kreindler of the compensation plan. “It has to be adequate. It’s not.” COURT OPTION Floyd A. Wisner, a lawyer with the Nolan Law Group in Chicago, identifies three variables that will dictate how well particular families fare if they opt to sue in court: liability, damages and ability to collect. Passengers on the four flights have better cases than victims killed on the ground, says Wisner, because the airlines’ legal duty is clearest in those cases. International passengers have the best liability cases of all, as the result of an international aviation treaty that places a heightened standard of care on air carriers, he said. On the subject of damages, young high-wage earners with lots of dependants have potentially the most lucrative cases. Finally, because of the liability caps, New York victims who sue have a much lower likelihood of collecting on any verdicts than victims of the Pennsylvania and Pentagon crashes, in which fewer people will be chasing a limited pot of insurance money.

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