Va. Weighs Its Cap on Negligence Payments

By Tim Craig
Washington Post Staff Writer
Monday, April 14, 2008

RICHMOND -- Several Virginia legislators are questioning whether the limits on the state's liability in cases of negligence should be increased after the Virginia Tech shootings.

Virginia's $100,000 limit on tort claims against the state hasn't been raised since 1993, making it one of the most restrictive caps in the nation.

But after 40 families of those killed or injured by Seung Hui Cho a year ago at Virginia Tech filed claims against the state, some legislators say they need to closely study the issue over the summer.

"We should take a look at it both philosophically and from an inflation standpoint," said House Majority Leader H. Morgan Griffith (R-Salem). "Just like the situation at Tech brought to light the need for mental health reforms, it also raises questions why the Tort Claims Act dollar amount hasn't been raised since 1993."

The General Assembly would not consider raising the cap until it convenes in January, meaning it would not apply to the families of the Virginia Tech victims. But the effort to study the cap could spark a broad debate about Virginia's protection under sovereign immunity, a concept that dates to British roots and the notion that kings and governments can do no wrong and cannot be sued.

In 1982, the General Assembly waived the state's immunity for tort claims but capped potential damages at $25,000. The cap, which is supposed to apply unless a plaintiff can prove "gross negligence," was raised to $100,000 in 1993.

The limit on damages has complicated efforts by the families of Virginia Tech victims to sue the state.

"I think it is an unfair cap and a travesty of justice," said Richard D. Heideman, an attorney for the family of Liviu Librescu, an engineering professor killed in Norris Hall. "I believe $100,000 is an arbitrary and capricious amount to set."

On Thursday, Gov. Timothy M. Kaine (D) announced that a majority of the families of the Virginia Tech victims have agreed in principle to accept an $11 million settlement in exchange for agreeing not to sue the state.

Under the agreement, which followed weeks of negotiations, the state will offer the victims health benefits and other non-monetary assistance. The state, in an effort to abide by the cap while not admitting it did anything wrong, will also give $100,000 to the families of the 32 people Cho killed. Those injured can also receive up to $100,000, depending on the severity of their injuries.

Roger O'Dell of Roanoke, whose son Derek was injured in Norris Hall, said more families would have accepted the settlement if the cap had been higher.

"I am hoping [all the victims' families] will raise the point with their own legislators and delegates and senators," said O'Dell, whose son accepted the state's offer.

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.

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