Va. Weighs Its Cap on Negligence Payments

Del. David B. Albo (R-Fairfax), chairman of the House Courts of Justice Committee, said the Tort Claims Act should be permanently indexed to inflation.

"What was $100,000 in 1993 is not $100,000 today," said Albo, who added that the General Assembly will also have to debate whether to increase the $2 million cap on medical malpractice awards.

Senate Majority Leader Richard L. Saslaw (D-Fairfax) said he is skeptical of efforts to raise the cap.

"If you want to start raising it up, you better also start talking about whether you want to keep sovereign immunity at all," Saslaw said.

Many states have some form of immunity to shield them from lawsuits, but caps on damages are often higher than in Virginia.

Maryland's cap on tort claims is $200,000, the same as Oregon's. Minnesota, South Carolina and Texas have a $300,000 cap.

Edward Jazlowiecki, a Connecticut lawyer who represents the family of Virginia Tech victim Henry Lee of Roanoke, called Virginia's cap "an absolute insult."

"If this would have been a private school, there would have been no cap," said Jazlowiecki, adding that Connecticut has no cap.

The Virginia Attorney General's Office, the state's lawyer, has settled cases for more than $100,000 when it believes the state has been "grossly negligent." The state self-insurance policy covers up to $2 million in damages in cases of gross negligence, victims' lawyers said.

In 2000, the state paid $750,000 to settle a suit brought by the daughter of a woman who was killed in 1997 when a balcony collapsed during the University of Virginia commencement ceremony. But Jazlowiecki said state officials were unwilling to budge on the $100,000 figure for the Tech victims, which is causing some of them to turn down the settlement.

"There will be lawsuits, and I hope they win," said Jazlowiecki, who declined to say whether his client accepted the state's settlement offer.

On Friday, details emerged of the victims' efforts over the past six months to build a case against the state. Attorneys for the victims requested all e-mails sent by every Virginia Tech employee April 16 and April 17 of last year. Larry Hincker, a spokesman for Virginia Tech, said it would cost an estimated $1 million in retrieval costs, which the law firms have declined to pay.

Jazlowiecki said the information could be retrieved if lawsuits are filed.

In trying to avoid those lawsuits, Kaine and Attorney General Robert F. McDonnell appeared to have sought creative ways to address the families' needs while abiding by the $100,000 cap.

According to a preliminary draft of the settlement offer, the state will create a $1.75 million "hardship fund" that victims can draw upon in addition to their direct payments. The state will also set up a separate $1.75 million fund that the victims' families can use to make donations to charities.

Some legislators are dubious of the charitable fund, saying victims' families should not be given authority to decide which organizations receive charitable gifts with taxpayer money.

"Bad things happen to people every day, and if the taxpayers have to cover every bad thing that happens, there will not be a tax rate big enough to support it all," Albo said.