AG: Protocol developed in consultation with Feinberg determines criteria for amounts
INDIANAPOLIS – Today Indiana Attorney General Greg Zoeller announced the payment plan for distributing the maximum $5 million in tort claim funds to victims of the Indiana State Fair tragedy.
With the amount the State has available for victims of the August 13 incident capped at $5 million, the payment protocol guarantees that at least $300,000 will be offered to the estates of each of the seven deceased victims in the stage rigging collapse.
Sufficient funds remain to compensate 61 other surviving victims who were among the most seriously injured. The computation works out to payments that are approximately 65 percent of the value of medical bills victims documented when they submitted their claims to the State. Every seriously-injured victim who submitted medical records will receive an offer of settlement.
Shortly after the August 13 disaster, Zoeller announced he would distribute the full $5 million in tort claim funds to victims on an expedited basis, without delays and costs from litigation regarding state liability. Zoeller brought in nationally-recognized victim-compensation expert Kenneth Feinberg, who administered victim compensation funds after 9/11, the Virginia Tech shootings and the BP Gulf oil spill, to assist the Attorney General’s Office in devising a protocol for distributing settlement payments to victims of the State Fair tragedy.
“No amount of money ever can replace lives lost or alleviate anguish endured by the victims of the Indiana State Fair tragedy. Because state law limits the amount the state can pay to $5 million per incident or $700,000 per individual and we are legally obligated to defend those limits, we had to make extremely difficult decisions about which injured victims would receive payment out of the limited pool of funds available. With the benefit of Mr. Feinberg’s expertise, my office has done everything possible to allocate these settlement offers fairly, equitably and humanely,†Zoeller said.
“I applaud Attorney General Zoeller, his staff and all others involved in designing the compensation protocol. No amount of compensation can make victims whole, or resolve their grief. But the protocol will bring some amount of financial relief to those most in need and will provide a fair and efficient process for resolving their claims against the State of Indiana. It is sound public policy,†Feinberg said.
Claimants and their attorneys have been notified of the State’s settlement offers. They have until December 12 to respond and accept or reject the offers. If any offers are rejected, then funds allotted for those individuals will be added to those for other claimants who accepted offers and their amounts will be recalculated. Once offers are accepted and claimants sign a release of liability, the State through the State Auditor’s Office will mail checks or issue electronic funds transfers later in December.
The Attorney General’s Office administers the State Tort Claim Fund, which is made up of tax dollars. A tort claim is a legal notice that a person who intends to sue the State for a loss is required to file. If the State grants the claim and pays a settlement, then the claimant releases the State from liability and does not file suit. After the State Fair tragedy, a total of 114 individuals or their estates filed 101 original tort claims (some of them filing jointly) against the State using a customized State Fair tort claim developed by the Attorney General’s Office with Feinberg’s help.
A claims-management firm retained by the State, JWF Specialty Company, made an extensive outreach to victims, received and processed the incoming claims, and followed up with claimants and their attorneys to obtain hospital bills and other medical records in order to calculate the medical costs involved. Through that data, the Attorney General’s Office developed a payment formula based on a modified protocol used after a previous incident for determining settlement amounts for claimants.
Also, during the process of calculating offers, the Attorney General’s Office participated in mediation with a group of 30 attorneys and law firms representing many claimants and reached tentative accord on the protocol. Settlement offers are with the consent of the Governor’s Office, and all claimants have the legal right to decline a settlement offer and take their chances with filing a lawsuit in court.
“Nearly all the claimants indicated they want expedited early settlements with the certainty of payment now to assist with their immediate medical bills and lost incomes, rather than the uncertainty of lawsuits that could take years to litigate with no guarantee of payment if the funds are exhausted,†Zoeller said.
Priority was given to providing compensation to families of the deceased and the most seriously injured as documented through medical records, meaning there was less available for the less-seriously injured and none for those who claimed non-physical injuries or whose claims could not be documented. Once the $5 million is exhausted, no payments can be made to remaining individuals who submitted claim forms but were not eligible for distribution under the protocol.
Meanwhile, a recent federal court ruling denied a request by one personal-injury lawyer to block the State from distributing the $5 million in tort claim funds; instead the court found that the distribution of funds to the claimants can proceed. The court’s certification of the lawsuit as meeting one legal criterion for a class action seeking a declaratory judgment does not impact the settlement offers the State made to the claimants, many of whom participated through counsel directly in settlement negotiations with the Attorney General’s Office.
The tort claim process of filing a notice with the State applies only to potential legal actions against state government. The State of Indiana is not a defendant in the separate lawsuit seeking damages that a group of claimants recently filed against a number of private businesses concerning the August 13 stage rigging collapse.
In advising the Attorney General’s Office on the tort claim fund, Feinberg donated his expertise at no charge to the State or taxpayers. Feinberg also consulted with another client, the Indiana State Fair Commission, concerning its separate State Fair Relief Fund, made up of private donations that were distributed as charitable payments to victims.
“I greatly appreciate the efforts of Mr. Feinberg, JWF Specialty and those in my office who have worked diligently to craft a dignified response to this tragic circumstance and do justice for the victims,†Zoeller said.
