United States District Court, S.D. New York
March 10, 2004.
LUCY VIRGILIO, et al.,
MOTOROLA AND CITY OF NEW YORK
The opinion of the court was delivered by: ALVIN HELLERSTEIN, District Judge
ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS
The parties appeared before me on March 4, 2004 for oral argument on
the defendants' motions to dismiss this case pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure. I reserved judgment at the time and
now issue my decision.
A Rule 12(b)(6) motion requires the court to determine whether
plaintiff has stated a legally sufficient claim. A motion to dismiss
under Rule 12(b)(6) may be granted only if "it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Conley v. Gibson, 355 U.S. 41,
45-46 (1957); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).
In evaluating whether plaintiff could ultimately prevail, the court must
take the facts alleged in the complaint as true and draw all reasonable
inferences in favor of the plaintiff. See Jackson Nat'l Life Ins.
Co. v. Merrill Lynch & Co., 32 F.3d 697, 699-700 (2d Cir. 1994).
This action was brought by the personal representatives of twelve New
York City firefighters who lost their lives on September 11, 2001 in the
collapse of World Trade Center Towers One and Two. The amended complaint
asserts numerous claims against Motorola and the City of New York for
allegedly providing the firefighters with faulty radios, depriving the
firefighters of adequate protection and making fraudulent
misrepresentations regarding the radios. Plaintiffs bring these claims
under the Air Transportation Safety and System
Stabilization Act (the Act). See 49 U.S.C. § 40101,
Pub.L. No. 107-42, 115 Stat. 230, 240 (Sept. 22, 2001), as amended by
Pub.L. No. 107-71, § 201, 115 Stat. 597, 645 (Nov. 19, 2001); and
Virgilio, et al. v. Motorola and City of New York, 2004 U.S.
Dist. LEXIS 1194 (S.D.N.Y. 2004).
Congress established the VCF "to provide compensation" to victims of
the September 11th attacks without facing the uncertainties of
litigation. The Act § 403. To balance this extraordinary relief,
Congress enacted a waiver provision: "Upon the submission of a claim [to
the VCF], the claimant waives the right to file a civil action (or to be
a party to an action) in any Federal or State court for damages sustained
as a result of the terrorist-related aircraft crashes." The Act §
405(c)(3)(B)(i). Thus, Congress provided a choice between entering the
VCF or filing a lawsuit. See Gravbill v. City of New York,
247 F. Supp.2d 345, 349 (S.D.N.Y. 2002). I previously ruled that this choice
was made upon "submission of a claim," which I held occurred on the
earlier of January 22, 2004 or the date the Special Master deemed the
claim substantially complete. In re September 11 Litigation,
2003 U.S. Dist. LEXIS 23561, *6-7 (S.D.N.Y. Dec. 19, 2003). Plaintiffs
have filed claims with the Victim Compensation Fund (VCF). Of the
remaining plaintiffs, five have accepted payments from the VCF,*fn1 two
have claims in the hearing phase,*fn2 and four have claims that are not
substantially complete.*fn3 Only one has dismissed her claim in this
The defendants argue that the case should be dismissed because the
plaintiffs have waived their right to sue by submitting a claim to the
VCF. Plaintiffs contend that the waiver provision should not apply to
their claims against Motorola and New York City because Congress intended
the waiver provision to apply only to negligence claims. Plaintiffs
further argue that if the waiver provision applies to these claims, the
wrongful death claims against New York City are permissible under the
"collateral source obligation" exception to the waiver provision.
See the Act § 405(c)(3)(B)(i) and § 402(6) (defining
collateral source obligation to include "life insurance, pension funds,
death benefit programs, and payments by Federal, State, or local
governments related to" the attacks). Plaintiff's previously raised
identical arguments before Judge Haight, sitting in Part I, who deemed
them unpersuasive. See Virgilio, et al. v. Motorola and City of New
York, 2004 U.S. Dist. LEXIS 1194, *25-45 (S.D.N.Y. Jan. 29, 2004). I
concur with Judge Haight's decision and adopt his findings as my own.
Thus, I hold that the waiver provision applies to the all of the claims
against Motorola and the City of New York. I further hold that the claims
against the City of New York do not fall within the definition of
"collateral source obligation."
As plaintiffs have elected their remedy, they have also waived the
right to bring a civil action "for damages sustained as a result of the
terrorist-related aircraft crashes of September 11, 2001." The Act §
405(c)(3)(B)(i). I thereby grant the defendants' motions to dismiss. The
Clerk of the Court shall mark this case as closed.
In parting, I note that after counsel finished their arguments at the
oral argument, I allowed family members and others to address the court.
Their presentations reminded the court of the tremendous sacrifice made
by those who were lost that day and the ongoing difficulties the
survivors face. The family members spoke of insufficient testing of the
Fire Department's radios and ongoing problems with the radios. They
expressed reliance on upper
level officials to have rectified the problems and blamed them for
having failed to do so. They highlighted that the Police Department
received word, causing many to evacuate, and were able safely to leave
the buildings in much greater numbers than the firefighters. In response
to reports that firefighters could have evacuated but did not, one mother
stated: "I'm here to . . . uphold the character and dignity of [my] son
. . . [i]f he would have heard on order to evacuate, he would have
evacuated . . . he loved his life. He never, never would have done
anything to commit suicide." March 4, 2003 Hrg. Tr. at 44-45. The
speakers expressed tremendous guilt at accepting compensation for an
uncompensable loss and deep frustration at foregoing the ability to force
parties to be held accountable.
The search for resolution following a tragedy such as this is difficult
and the options are imperfect. A lawsuit is rarely a good means of
assigning accountability. More often a lawsuit is a conduit to distribute
compensation, not a mechanism to distribute blame. Congress foresaw this
difficulty by accepting a collective responsibility for those who lost
their lives and providing for a speedy and generous compensation
procedure where the risk, burden and expense of litigation could be
avoided. The surviving family members and others associated with the
victims need not feel guilt. Although their losses are irreparable, there
is a collective guilt and collective responsibility for that which cannot
be undone, as well as resolution that a 9/11 attack should not happen