In one of the many end of the year recaps that are being circulated this week, the Indianapolis Star has published its article “the Top 10 Local Stories of 2011,” and topping their list is the tragic crash of the stage rigging at this year’s Indiana State Fair. (For details, check out our earlier post here or watch this video where Kenneth J. Allen discusses the State Fair tragedy’s consequences.)
One Lesson From the Indiana State Fair Tragedy: Justice May Depend Upon Where the Accident Happened
As Kenneth J. Allen discusses in the above video, the fact that this tragedy took place where it did made a difference for those seeking personal injury damages under the law. An injury that occurred on a government-related site got different treatment under the law than if would have if the exact same incident had happened at a privately owned location. The Indiana State Fair took place on state owned fairgrounds.
Under Indiana law, this meant that a cap applied to the damages claim: a cap of $5 million. If the accident had not been on publicly owned land, then the cap would not be an issue.
Attorney General Announces Settlement in December 2011 – $5 Million is Paid Out
On December 19, 2011, Indiana Attorney General Greg Zoeller officially announced that settlements had been reached with 64 of the 65 claimants in the Indiana State Fair tragedy and that his office expected checks to begin being sent out to these victims by the end of the month.
Meanwhile, Kenneth J. Allen is working for justice here, going into federal court to ask that this $5 million cap be nixed for the Indiana State Fair victims. In December 2011, the federal judge okayed Allen’s plan to have federal review of the situation. More on that fight in the months to come.
The Indiana Attorney General seems to have ended 2011 with checks being sent and an idea that this is a done deal. From the AG’s news release:
“Deciding on compensation for the victims of the State Fair tragedy is one of the most difficult duties the Indiana Attorney General’s Office has ever undertaken. From the start we knew that no matter how we divided the $5 million available, it could never replace the seven lives lost nor erase the pain of the injured and grieving. We did all that was possible to treat victims equitably and to assist them with their medical and financial needs within the amount the law allows,” Zoeller said.
Defending the state’s Tort Claim Fund, which is made up of tax dollars, from claims and potential lawsuits is one of the duties of the Indiana Attorney General’s Office. After the deadly stage rigging collapse August 13 at the Indiana State Fair, Zoeller announced that he would make available the $5 million in tort claim funds the State has, without regard to liability.
Working with nationally-known expert Kenneth Feinberg who administered victim compensation programs after 9/11 and the BP Gulf oil spill, Zoeller’s office designed a victim-centered program where victims could submit tort claims to the state and receive settlement payments on an expedited basis, even if they did not hire an attorney.
A total of 114 individual claimants – including the representatives of the seven deceased – filed a total 101 claims and utilized a customized State Fair claim form the Attorney General’s Office developed. The State also retained a claims management firm, JWF Specialty Company, to receive and review the claims and follow up with claimants to obtain additional medical documentation.
Under the compensation protocol Feinberg helped design, the estates of the seven deceased victims were guaranteed settlements of at least $300,000 each. Another 58 claimants who were most seriously injured and met at least one other protocol criteria were offered payments equal to approximately 65 percent of their medical and hospital bills submitted to date. Since that amount will exhaust the rest of the $5 million the State has available, claimants with non-physical injuries did not receive settlement offers under the protocol.
To be offered settlements, claimants or their attorneys were required to submit documentation of hospital expenses; the form asked that documentation be attached. Offers could not be extended to any claim that lacked medical documentation or where the requested information was not provided. JWF Specialty Company was available to answer questions from claimants and their attorneys throughout the process.
On December 6 the State sent offer notices to 65 eligible claimants or their representatives requesting a prompt reply. Although claimants had the legal right to decline the offers, all but one accepted, including the estates of all seven deceased victims. The remaining $1,691 that one claimant’s attorney declined was redistributed among the other 64 claimants and their offers were recalculated. By accepting offers, claimants sign settlement documents releasing the State of Indiana from future liability. That does not prevent claimants from pursuing separate legal actions against other private entities over the stage rigging collapse.
After offers were extended, three claimants identified conflicting medical billing data that had been previously submitted to claims manager JWF Specialty Company during the claim-filing period. The disputed claims were carefully reviewed, and the State and JWF agreed to resolve the disputes in favor of the claimants, meaning their offers were revised upward by a combined total of $33,027.31. Since by law the State’s cap per incident is a total $5 million and cannot exceed that, JWF Specialty Company graciously agreed to pick up the difference and pay the increased offers to the three claimants out of its own funds.
“JWF Specialty provided invaluable service to the State under extraordinarily difficult circumstances under an accelerated claims-review period. We appreciate their good corporate citizenship in resolving disputes in favor of the claimants in keeping with a victim-centered approach, and we thank them for their expertise on an extremely complicated claims-management process. There was nearly 100 percent participation from those claimants who were offered settlements, an indication we believe of how carefully the protocol was developed,” Zoeller said.
During the process of calculating settlement offers, the Attorney General’s Office participated in mediation with a group of approximately 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.
“Members of the legal profession who met repeatedly with the State to reach consensus on a compensation program for their clients should be commended for helping bring this process to an expedited conclusion. And I’m enormously grateful to Kenneth Feinberg who donated his services at no charge to the State of Indiana or taxpayers. His wisdom from developing past victim compensation programs after other tragedies was indispensible to my office in helping us navigate through difficult questions. The work of the Attorney General’s Office does not end here and we will continue to diligently represent the State in legal matters involving the State Fair tragedy,” Zoeller said.
Now that the final list of accepted offers has been calculated, the State Auditor’s Office will begin the process of issuing payments by check or electronic funds transfer. The first group of checks is scheduled to be mailed Wednesday and the process should be complete by the end of the year. JWF Specialty Company will follow up with any claimants from whom any additional paperwork is needed.
