August 8, 2008 10:36 AM CDT by Barbara L. Jones Associate Editor

When the claims of survivors of the 35W bridge collapse are all submitted to a panel of three special masters appointed to hear them in about two months, everyone involved will be participating in a historic new process.

The panel members — Twin Cities attorneys Susan Holden (panel chair), Steven Kirsch and Michael Tewksbury — have been working at top speed to create a framework for the claims process authorized by legislation passed last May. Their goal is to provide all the bridge collapse survivors (which includes the families of those killed) with a meaningful opportunity to be heard.  To fulfill this mission, they have enlisted the aid of the Attorney General’s Office, the state Department of Finance, the District Court and others.

There’s a finite pot of money to be distributed, and doing so will require some intense crunching of numbers. The state has provided two compensation funds.  One fund is composed of $24 million to pay the general claims of survivors, with each individual award subject to a $400,000 cap.  A second fund of $12.6 million is available to pay only unreimbursed medical expenses, unreimbursed wage loss and unreimbursed future wage loss — in that order. (Claimants have until Oct. 15 to file for compensation from the fund.)

Complete information about the claims process, including all necessary forms and documentation, is available at bridgecollapseclaims.com, a website that the Minnesota State Bar Association compiled to assist claimants.  More information is also available by calling the special masters’ “office” at (651) 485-1153. (The number connects to a cell phone that will be rotated among the three special masters.)

User-friendly process

Holden, Kirsch and Tewsksbury — all veterans at handling injury claims — knew full well all the information they would need to evaluate a loss, but had to develop a user-friendly but comprehensive set of claim forms from scratch.  Those forms are available on the website, as is a list of attorneys who have made themselves available to assist claimants.  Holden noted that the state has estimated that there are 40 to 60 potential claimants yet unrepresented.

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“We want to get the message out that there is no downside to participating in the process and there are lawyers willing to represent them on a pro bono basis through the special compensation process. As I understand it almost every lawyer who has a client going into the special compensation process is doing it for a pro bono or reduced fee,” Holden said. 

The next step in the claims process will be a hearing. The statute requires at least one member of the special master panel to meet with each claimant, but a claimant may waive the hearing.  A claimant may choose a one-hour hearing with a panel member, more time or a  meeting with all three special masters.  The panel is fully aware that the survivors may be fragile and require special compassion, Holden said.

“We wanted to allow them to have a hearing in any matter that they were comfortable with. This is not an adversarial process. It’s an important process for us to get the information but it’s not a direct exam and a cross exam.  More often than not it’s a really important part of healing for survivors to have a chance to tell their story,” Holden said.

The panel has until Feb. 28 to make its awards, which claimants have up to 45 days to accept.  The panel will have to move quickly to complete all the hearings and make the awards in that short period of time.  The panel will determine the total damages that have been sustained by each survivor, as well as the amount actually available to pay them.  The panel must determine the total damages award so the state’s subrogation interest can be protected. If a survivor is fully compensated from other sources, then the state may assert a subrogation interest.

“Our plan is to hear all cases before we make any settlement offers because we don’t know if there is enough money to go around. We’re going to need to complete all the hearings and make our global damages determinations in each case and then apply what funds are available in accordance with the limitations on each of the funds,” Holden explained.

Some controversy likely

It’s likely that the claim valuations will give rise to some controversy, depending on the damages assessed and any gap between the damages and the payment. The special masters have complete discretion to evaluate the claims and make the awards.  The award is not subject to negotiation, and failure to accept is a rejection. There are priorities for payment in the special fund but not in the general fund.

“It’s always a difficult issue how to value a claim in a death [or] a loss of earning capacity claim vs. a disability that prevents a person from doing something that they loved, but it wasn’t how they make a living.  We’re going to have to make some judgment calls about the values of those kinds of damages based on our own experience and the information that is presented to us. We aren’t going to be able to satisfy everyone on that,” Holden said.

The release forms are unlike any others because they are intended to release the state but preserve its subrogation claim and at the same time not impair any survivors’ claims against third parties.  Through about six hours of meetings, the panel has gained the buy-in of representatives of the claimants’ bar and the attorney general in drafting a release that everyone will be comfortable with, Holden said. Therefore in March or April, when it comes time to sign it, the release shouldn’t give anyone pause, she said.

The panel also has worked with the state to facilitate structured settlements.  Once an agreement is reached, structured settlements have to be funded quickly, Holden said. Normally the state has 45 days to pay claims, but in this case will make payments within seven days, she said.

“Structures are going to be available to any survivor who wants to be paid in that manner. Quotes for a structure are only valid for seven days to two weeks, so we needed to make sure that the department of finance would pay more promptly. They have really stepped up. We have a meeting [scheduled] with five structured settlement firms that we will be working with. The structure brokers are working with reduced fees and the companies are going to be waiving some fees,” Holden said.

Role of the courts

Some of the settlements will require court approval. The claims statute does not require court approval in every case but did not except the fund from Rules 144 and 145 of the General Rules of Practice for the District Courts, which require court approval in death cases and cases involving minors or incompetent persons. A process is in place to allow those court hearings to happen expeditiously.

“State court administration has been a great help to us in getting all of the details together, especially given the short time for getting the settlements approved. The state enlisted the help of Hennepin and Ramsey Counties. The claim will go to a designated person in Hennepin or Ramsey who will accept the filing and set it for hearing before the judge within the timeframe that we need for structured settlements. It’s been a great collaborative effort,” Holden said.  

There were 13 deaths on the bridge and 60 children riding on a school bus who all have claims, along with other minors in vehicles, Holden noted. “We’re thinking there are 80 to 90 cases that need court approval,” she added.

The special masters know they can’t please all of the people all of the time, but their goal is that all the survivors believe they were treated fairly.

“We have some limitations that were prescribed by the statute and we’re going to do the best we can within those limitations and try to give everyone an opportunity to tell his or her story, to be treated fairly,” Holden said.  “I hope they’ll say that they have confidence in the outcome because of that, and that the process had integrity.”