To Loretta Filipov, it was never about the money.
Her 70-year-old husband, Alexander, an electrical engineer, was on Flight 11 with 91 other people when it crashed into the World Trade Center's North Tower on Sept. 11.
Sixteen days later, Congress created the September 11th Victim Compensation Fund to provide for the survivors of the nearly 3,000 who died that day, if they agreed not to litigate their claims.
By the time the sign-up deadline arrived in December of 2003, some 97 percent of the eligible families had decided to go through the now-closed Fund - but Filipov was not among them.
A resident of Concord, Mass., Filipov had attended a meeting in Boston called by Kenneth R. Feinberg, special master of the Fund, along with her lawyers.
"It was terrible," she recalled. "People were asking questions like, 'My son worked at Cantor Fitzgerald [a law firm at the World Trade Center] and he was due for a raise. ' Then somebody else would say, 'WHAT? You're going to give him a raise? What about MY son?' I said to my lawyers, 'Can we leave?'"
She did nothing for more than a year and a half. Then one of her lawyers called to say that attorneys from a South Carolina firm were in Boston and were interested in talking with people who had refused to file with the Fund. The firm was Motley Rice, an 80-lawyer firm that made its mark in asbestos and tobacco litigation.
Filipov met with their lawyers, signed on and filed a lawsuit claiming that the airline and airport security providers had been negligent in failing to deter the terrorists.
Last week, as the nation observed the fifth anniversary of 9/11, lawyers are pressing forward with some 60 lawsuits, including Filipov's, in U.S. District Court in New York, where litigation has been consolidated before Judge Alvin K. Hellerstein.
When Congress passed the legislation enabling the Fund, it also provided that family members of the victims could opt out and file suit in federal court in New York. More than 90 such suits were filed, the large majority of them by survivors of individuals who died on the planes. Only about a dozen lawsuits were filed by survivors of the "ground victims. "
The reason for the small numbers, according to lawyers involved in the Sept. 11 litigation, is that family members of those victims were more deterred by the $15 billion cap on the airlines' liability established by Congress. Further, the defendants have argued that these plaintiffs are ineligible to recover, notwithstanding the language of the Fund's enabling statute (which states that all victims may sue), because neither federal law governing airline security nor state tort law would impose liability for the ground claims. They also argue that the events of 9/11 were an act of war.
On Sept 9, 2003, Hellerstein rejected a defense motion to dismiss and specifically stated that the ground victims were entitled to sue - but if that finding is overturned, those plaintiffs could recover nothing.
The plaintiffs who have sued are claiming that their loved ones' deaths were preventable events resulting from airline and security company negligence. Depositions are scheduled to begin Sept. 12, and the first trial could happen next year.
Hellerstein has reportedly been urging the litigants to settle. But Donald Migliori, a partner in the Providence office of Motley Rice, said the plaintiffs and their lawyers are adamant about going to trial.
"We feel very confident that even without further discovery, the evidence to prove fault is already out there in the public record - especially given the 9/11 Commission report," which was released in 2004 and identified security lapses at the airports where the commandeered flights originated, he said.
Marc S. Moller, a partner at Kreindler & Kreindler in New York City who is serving as a liaison between the plaintiffs' lawyers and the judge, acknowledged that Hellerstein is exerting settlement pressure, but agreed with Migliori about the plaintiffs' resolve.
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