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A deadline-driven surge in filings by families of the 2,976 people killed in the Sept. 11, 2001, terror attacks propelled the percentage of those seeking compensation from a federal fund to 92 percent by Monday afternoon. As of 2 p.m. East Coast time, 2,734 families of those killed had filed claims with the fund, which provides compensation to those who agree to forego litigation. The number of death claims filed for the month of December had climbed to 762, more than triple the monthly average filed in the previous four months. During those months, the number of filed death claims climbed steadily from 144 in August to 343 in November. Similarly, claims brought by those injured in the attacks and the rescue efforts spiked upward in December to 1,377, bringing the total of injury claims filed to 3,148 as of 2 p.m. Special Master Kenneth R. Feinberg, who runs the September 11 Victim Compensation Fund, has long set a 90 percent death claim filing rate as a benchmark for the program’s success. With that goal in hand, Monday he declared the program “a dramatic success.” Leo Boyle, the head of Trial Lawyers Care, a group providing pro bono lawyers to families seeking awards from the fund, agreed that it is “a phenomenal success for any government program to achieve 90 percent participation.” He added that it was possible that the death claims filings could reach 95 percent by the deadline. Marc S. Moller, liaison counsel for the families that have chosen to sue rather than seek compensation, suggested that some of the tail-end filers may yet end up bringing lawsuits. He pointed to an abbreviated filing procedure Feinberg established so families’ rights would not be compromised by Monday’s deadline and suggested that some may be taking advantage of an extra 30 days before completed applications are due to decide finally whether to sue or seek relief from the fund. Moller added that Feinberg has “bent over backwards to be generous,” but noted that there are still concerns among some families over how high-wage earners should be compensated. Boyle, a former president of the Association of Trial Lawyers of America (ATLA) who was instrumental in persuading Congress to create the fund, praised Feinberg for being “passionate about getting as much relief for as many families as possible.” To date, the fund has paid out $1.5 billion on 1,397 injury and death claims, with the total payout expected to come to more than $4 billion. The largest death claim approved so far has been $6.9 million and the largest injury award was $7.9 million. The average death award, after offsets, has been $1.8 million. The fund has not calculated an average payout for injury awards, but the 402 injury awards issued so far have ranged upward from $500. Fund officials expect less than 20 large injury awards, all of them in serious burn cases. Many of the injury claims have come from firefighters and other rescue workers who still suffer respiratory problems as a result of exposure to toxic substances during the rescue and cleanup effort. So far, only 73 families have brought lawsuits. Moller said some of those families lost high-wage earners and feel that the level of compensation under the fund is inadequate. Others, he added, want to establish responsibility for the terror attacks. COCKPIT THEORY Unlike those seeking compensation from the fund, those who sue must establish fault. Moller said the principal theory he is pursuing is that the airlines failed to take reasonable measures to prevent the terrorists from invading the cockpits of the four planes used in the attacks. Even though the legislation that created the fund also capped the airlines’ liability, collecting a future judgment may not necessarily be a problem for families of those killed on the planes that crashed into the Pentagon and in a field in Shanksville, Pa., Moller said. Compared to World Trade Center victims, who must compete with enormous property damage claims, there was relatively little property damage in the other two crashes, Moller noted. The surge in last-minute filings has forced Trial Lawyers Care to seek another three dozen lawyers to ensure that every family that wants a pro bono lawyer has one, Boyle said. So far, Trial Lawyers Care has found more than 1,000 volunteer lawyers to handle 1,600 fund cases. About 375 of those volunteers are New York lawyers recruited through the efforts of the New York State Trial Lawyers Association, Boyle reported.

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