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Concern Growing as Families Bypass 9/11 Victims' Fund
August 31, 2003 - New York Times
By DIANA B. HENRIQUES

Federal and local officials are growing increasingly concerned that nearly 60 percent of families who lost relatives in the September 2001 terror attacks have not filed claims with the victim compensation fund established by Congress.

The most recent statistics show that 3,016 people died in the attacks at the World Trade Center and the Pentagon and aboard an airliner that crashed in Pennsylvania. But as of Friday, with the Dec. 22 deadline for applications less than four months away, only 1,240 death claims had been filed with the fund. And while no one knows exactly how many people were injured in the attacks, so far only 1,035 of them have sought compensation from the fund, which has no cap.
"I am concerned, and I think the administration is concerned," said Kenneth R. Feinberg, the federally appointed lawyer who oversees the fund and makes its final decisions. Mr. Feinberg has estimated that the fund, which has paid out $623.1 million, could distribute as much as $3 billion. There is a basic award for every death, which is increased to reflect a family's economic loss as a result of the victim's demise. Mr. Feinberg plans to meet Tuesday with Mayor Michael R. Bloomberg of New York City to discuss the mayor's unease about the pace of applications, and several members of Congress have asked Mr. Feinberg to visit their home states to help raise awareness about the Dec. 22 deadline, which is built into the fund statute and cannot be waived.

"The statute has a little more than three months to run," Mr. Feinberg said. "So where are the rest of the people?"

Some families say they are deciding whether to file a lawsuit instead. Others, especially high-income families who lost a breadwinner in the collapse of the trade center, may be awaiting developments in a federal lawsuit in Manhattan. And still others say they have not recovered sufficiently from their grief to face the paperwork involved in filing a claim — and the painful memories it would bring to the surface.

The fund, created by Congress as part of a legislative package to protect the airline industry from ruinous litigation, requires those who file claims to waive their right to sue over the attacks — other than lawsuits filed against the terrorists who planned the attacks and those who are accused of harboring or financing them.

But citing Justice Department statistics, Mr. Feinberg said that only 69 disqualifying lawsuits have been filed, and only three of those were filed in the last five months. "Most people are not suing and have not filed with the fund," he said. "You have to ask why."

His own answer — one that was echoed by the leaders of some family groups that coalesced after the disaster — is that many people are still too paralyzed by their grief to confront the logistical burden and emotional pain of filing a death claim.
"I have met with thousands of families," Mr. Feinberg said. "And you would be amazed at the number of people who, when I say the deadline is approaching, still come up to me in tears and say, `I'm not ready.' "

By most measures, the financial incentives for filing would seem to be substantial. Roughly 800 claims have been approved, and the average tax-free award for a death claim has been $1.6 million, after all the deductions for insurance and other offsetting awards. Individual awards range from $250,000 to $6.1 million, and awards for injury claims range from $500 to $6.8 million, with the higher figures reflecting claims by burn victims.

Those awards may seem inadequate, however, for families of high-income or well-insured victims, some lawyers and family representatives said. Those families may be postponing the decision about whether to file a claim with the fund until a significant decision is made in court cases pending against the
James P. Kreindler, an aviation disas
ter lawyer in New York who represents many Sept. 11 families, explained that a federal judge in Manhattan is weighing whether the airlines have any liability to any victims other than those riding on the four hijacked aircraft. If the answer is yes, he said, some high-income families who lost a breadwinner in the trade center might decide that a lawsuit would be more advantageous than a fund application.

"A lot of people would prefer to sue rather than go into the fund," Mr. Kreindler said. "But that really depends on your ability to tolerate risk."

A family with a claim of $8 million would probably be best served by the speed and certainty the fund offers, he said, but a family with a claim of $30 million and substantial offsetting insurance would find the fund's awards much less attractive.

But Mr. Feinberg said he did not see any such pattern in the claims that the fund has received so far. "It's not as if all the high-end claimants are waiting, and the low-end ones aren't," he said.

For some low-income families, fear seems to be as much at work as grief, he said. About 100 undocumented workers are thought to have died in the attacks, but the fund has received claims on behalf of only about 30 of them. The others, he said, are afraid of deportation or other sanctions if they file, despite written reassurances to the contrary from Justice Department and immigration officials.

Another factor, some family members said, may be the uncertainty over the deadline for filing a lawsuit. Congress required that any lawsuits related to the attacks be filed in New York, where state law typically requires that a wrongful death claim be filed within two years of the event. The state has extended the deadline by six months, to March 10, 2004. But Mr. Kreindler said it was not clear whether non-New York residents can take advantage of that extension, which may have prompted some of them to focus first on preserving their legal options rather than filing a fund claim.

"Families are confused," said William Doyle, whose son Joey died in the trade center and who maintains one of the largest e-mail networks of injury victims and survivors. "Between the court and the fund, there are a lot of different deadlines."

Mr. Doyle, a human clearinghouse who sends information to hundreds of 9/11 victims' families, said he was confident that most families know about the fund, and are aware of the approaching deadline. "But you have families out there that are still grieving," he said. "It's tough to wade through all this paperwork."

When the fund was first set up, it was the target of fierce criticism by some bereaved families, who resented its limitations on their right to sue and disputed its formulas for calculating their economic losses and emotional suffering. One of the most vocal and active critics was Charles G. Wolf, whose wife, Katherine, died in the trade center's collapse.

But Mr. Wolf said on Friday that he does not think that lingering anger and dissatisfaction are the reasons for the low application rate. Indeed, he said that Mr. Feinberg has recently proven to be so much more flexible and fair in his policies and decisions that Mr. Wolf now plans to file his own claim with the fund and is actively encouraging others to do so.

"For the mental health of these victims, they need to file," Mr. Wolf said. "They need to put closure on something."

But he still meets resistance, he said. One parent told him that a fund award would seem like "blood money." The man seemed only partly persuaded by Mr. Wolf's argument that he should file a claim and "do something wonderful with the money — establish a foundation, give it to charity in your daughter's name."

Mr. Wolf acknowledged that "it's painful to file, because you have to go through a lot of stuff that hurts so much. There's a lot of pain avoidance going on," he said.

Still, he has moved further along than a New Jersey widow who is part of Mr. Doyle's e-mail list. Last January, she wrote him to say that she did "not know one family that has settled" with the victim compensation fund. Last week, she said she has still not filed a claim with the fund.

"I have not given it much thought," she said softly, after asking that her name not be used. "I have been involved in other things just trying to get through each day." Asked about the approaching deadline, she said, "Considering where most people are in their grief, from the people I know, the deadline Congress set is just too soon."

It is responses like that, Mr. Feinberg said, not debates about the merits of litigation, that haunt him as he heads off for a fresh round of informational meetings across the country this month. A schedule of those meetings, including two in New Jersey, three in the New York City area and one in Connecticut, is online at: www.usdoj.gov/victimcompen- sation/whatsnew.html.

"If people want to litigate, fine," Mr. Feinberg said. "I think it's a mistake, it's ineffective and protracted and it prevents closure — but at least they're making a choice."