Litigation threatens to entangle recovery

Lawyers seek ways to avoid victims' fund and sue over attacks

Terrorism Strikes America

September 30, 2001|By Kate Shatzkin | Kate Shatzkin,SUN STAFF

Along with flag waving and generosity, a less savory American tradition is poised to emerge from the rubble of the Sept. 11 terrorist attacks: the lawsuit.

It's a tradition Congress and many members of the legal community are trying to avoid. They say the families of the thousands of victims of the disaster Sept. 11 are too many and their claims too huge for the court system to handle.

But some lawyers are already gearing up for what could be the most complicated web of litigation in American history.

Lawyers across the country are looking for ways around the victims' fund established as part of a $15 billion government bailout of the airline industry in the wake of the attacks.

The fund, which includes government money as well as insurance from United and American airlines, will provide some compensation to victims and their families - but preclude them from suing. Those who don't wish to use the fund can take their chances in federal court in New York.

At stake are billions of dollars. Insurance costs alone in the disaster are estimated at $30 billion, exceeding the $20 billion bill for Hurricane Andrew in 1992. The family members of the more than 6,000 people who are feared dead, along with survivors of the attacks, create tens of thousands of potential claimants.

Proponents of using the fund argue that it will help victims much faster than would the courts, in part because claimants won't have to prove fault.

But some lawyers say the fund's rules, which are still being worked out, are likely to be too restrictive.

For example, Chicago lawyer Donald Nolan, who represented families in the crash of TWA Flight 800 in 1996, says the fund doesn't include insurance from private security companies, employees of which might have allowed the hijackers' weapons to slip through.

And some people, he says, will want to go through the "truth-seeking" process that a lawsuit can provide.

Many lawyers, though, are urging restraint. The American Trial Lawyers Association has called a moratorium on the filing of lawsuits and has pledged free help for families weighing their options.

John P. Coale, a Washington lawyer who has sued the tobacco industry and gun manufacturers, airlines and railroads, has received calls from four families who lost loved ones in the World Trade Center. This time, he is advising them that the fund - not the courtroom - could be the better answer.

Too many lawsuits, for example, could lead insurers to invoke clauses in their policies that allow them not to pay when damage is caused by "acts of war," Coale says. So far, the industry has not invoked that language.

"If the plaintiffs start to play hardball, the insurance industry is going to do the same, and then it's going to become a litigation mess," Coale says. "The key to this is everybody has to be willing to play straight and honest on all sides of this."

But some are preparing their cases. For them, the question is whom to sue.

The airlines? Private security companies that let box cutters on flights? The Port Authority of New York and New Jersey, which owned the World Trade Center? The banks that issued debit cards to the hijackers, allowing them to buy plane tickets electronically? Osama bin Laden?

Suits against the airlines or others that might have allowed the attacks to happen would hinge largely on the notion of "foreseeability," legal experts say - how likely it was that the defendant could predict that such an attack would happen, and what was done to prevent it.

A group of more than 400 people sued the Port Authority over the bombing of the World Trade Center in 1993, claiming it had a warning that the skyscrapers were a likely target of terrorists.

Eight years after that bombing, the case has yet to be heard. Blair Fensterstock, the lead attorney for the plaintiffs, says the delay is the fault of the Port Authority. The agency resisted turning over a series of internal reports that showed its officials not only anticipated a terrorist attack, but also predicted it would be carried out with a bomb in a parking lot.

Port Authority lawyers at the time argued that providing the reports would leave security information open to terrorists for another attack.

"I would hope that the judicial system would permit us to move much quicker in this situation," Fensterstock says. "Discovery can move a lot faster than the first time."

The Port Authority is a likely target for suit in the latest attack, Fensterstock says - particularly because an announcement made in the south tower after the first plane hit told workers it was safe to return to their offices. Moments later, a jet hit that building, which subsequently collapsed.

"Those people should be compensated, clearly, as a result of that announcement," the lawyer says. "They could have gotten out and didn't."

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