The average award to victims’ families should increase by about $200,000 after changes made to the criteria used to deduct outside income. As expected, the noneconomic loss awards were increased from $50,000 to $100,000 for the spouse and each dependent of a victim. Under the final rules, award calculations will not deduct Social Security death benefits for surviving spouses, worker-compensation benefits and 401(k) accounts. The formula will also factor in a victim’s age, earning potential and salary at the time of death when calculating the family’s award.
Though there is no minimum award amount or “cap” specified in the rules, Special Master Kenneth Feinberg, the fund’s administrator, said he believes it will be very rare that a claimant will receive less than $250,000 or more than $4 million. The average award should be about $1.8 million.
An additional change in the rules allows anyone who sought medical care within 72 hours after the attack to be eligible for fund awards. Initially, only those who received treatment for injuries in the 24-hour period after the attacks were able to apply to the fund. Feinberg has also given himself the discretion to extend the time period even further for certain rescue workers on a case-by-case basis.
One rule that did not change is that distribution of the federal fund will still be guided by state law. That leaves out some who had hoped to qualify under the final rules. Those who live in Pennsylvania or the District of Columbia, where common-law marriages are recognized, for example, could be entitled to money, while those from New York, New Jersey and Connecticut in similar arrangements would not, according to Helen Macfarlane, a lawyer at Shearman & Sterling in Manhattan.
Macfarlane has been providing free legal aid to Marmily Cabrera, who shared 11 years, a mortgage and two children with Pedro Checo, a vice president of investment operations for Fiduciary Trust, who was killed on September 11. While they considered themselves common-law spouses, the union was not legally recognized in New York, so she has been unable to apply to the fund herself. [“Shut Out”]
“I am a bit surprised because he [Feinberg] made it sound like they were really interested in what people wanted,” said Cabrera on Friday. “Why ask for comments if they’re not going to change anything? They are giving more money to those who were already eligible instead. I guess I’m kind of bitter.”
Macfarlane said the revised rules are still vague enough that there is a possibility Cabrera would qualify as a relative. But, if not, the firm will likely lobby the state to recognize common-law spouses for the purpose of the federal fund distributions.
Though their award amounts increase under the new rules, even some of those families who qualify for compensation are still reluctant to apply for the fund-mostly because they believe higher damage awards may be won by filing individual lawsuits against the airlines’ insurance carriers. Those who apply for awards through the fund relinquish their right to sue the airlines.
“What we are opposed to, and are fighting against, is the notion that a government official substitutes his views for what these people need versus what they lost,” said James P. Kreindler, a partner at the Manhattan law firm Kreindler & Kreindler which represents 165 victims’ families. “We’re not putting any clients into the fund unless we are convinced that the award will be reasonable and fair.”
And Kreindler is not convinced that will be the case under the new rules, particularly when families of victims killed in past accidents involving airlines have been awarded significantly higher awards in court. Kreindler said some of his clients may need to apply to the fund immediately for financial reasons, but he has counseled others to weigh their options before deciding whether to file a lawsuit or apply for the fund.
The fund’s rules recognize that “no amount of money can right the horrific wrongs done” in the September attacks, but some Americans have complained that the awards are too high. “These are people, families, American citizens for the most part, who have suffered a horrible loss, months ago-not years ago, months ago-and they are trying as best they can to value a lost loved one,” Feinberg stressed on Thursday. “I do not believe it has anything to do with personal greed. It has everything to do with valuing a lost loved one.”
Families of those killed in the attacks insist that they are not trying to get rich, but that they want to make sure that their children are provided for and that the government is held accountable.
“We are not seeking to get rich because our husbands died,” said Katie Soulas, a pregnant mother of five whose husband, Timothy, 35, managing director of foreign currencies at Cantor Fitzgerald, was killed in the attacks. “We’re being told not to take away the stability for our kids-that moving is a bad idea. I’d like the American public to see how we have to hold everything together. Our kids have already lost a parent. What else do they have to lose?”
Soulas had not yet made a claim when the final rules were announced. Neither had the family of Matthew Sellitto, 23, another Cantor Fitzgerald employee killed on September 11.
“Here we are pitted against justifying ourselves to the nation. We deserve accountability from the government,” said his mother Loreen Sellitto. “This is not just about the money.”
Nearly 3,000 people were killed in the September 11 terrorist attacks. About 370 people have filed for compensation from the fund so far, according to Charles Miller, a spokesman for the Department of Justice. Their awards will be adjusted in accordance with any changes to the rules.
