Statement as issued Friday by the Indiana Attorney General's Office:
INDIANAPOLIS – Victims of the Indiana State Fair stage-rigging collapse can apply starting next week for an additional $13.2 million to compensate those physically injured and the estates of those who died, Indiana Attorney General Greg Zoeller announced today. The funding available to State Fair claimants includes $6 million in supplemental state compensation the Indiana General Assembly approved, plus another $7.2 million in private money that two companies named as defendants in State Fair-related lawsuits are offering at the Attorney General's request. The private funds will be paid out upon collective support among the claimants and state funds will be paid out by the end of the year pursuant to state law.
All claimants who filed tort claim notices last fall in the state's earlier $5 million settlement phase are allowed to apply for supplemental funds under this additional round. The Legislature passed a new law allocating $6 million in new public money to the physically injured claimants only and directing how it will be distributed. Both physically injured and non-physically injured claimants also can apply for a share of the separate $7.2 million in private funds. Even those claimants not eligible for the original settlement last fall might qualify for a portion of the private money this time, though it will be up to an arbitration panel to decide whether they receive any payment or not.
The $7.2 million in private funds is offered by two defendants named in some claimants' lawsuits related to the stage-rigging collapse. Mid-America Sound Corporation and James Thomas Engineering Inc. are making the money available to claimants who elect to participate in this supplemental process. The Attorney General's efforts to secure participation from defendants resulted in the $7.2 million full commitment of available funds from the two companies in order to speed financial relief to victims and make a broader group of claimants potentially eligible for private funds. Other defendants have been invited to participate in efforts to expand the scope of the supplement payment process.
"This is about putting the victims first. The state's role to assist victims of the State Fair tragedy did not end when we paid out the original $5 million maximum from the tort claim fund in December. We know that claimants need additional financial help now and they can't wait for years, so with the Legislature's support and direction we designed a process where they can tap into additional funds. We want to provide these supplemental dollars in a prompt, equitable and respectful manner," Zoeller said.
"This public-private partnership to speed up compensation to victims of the State Fair tragedy is totally consistent with the core Hoosier value of helping neighbors in need in an expeditious way. When we in the Indiana General Assembly added $6 million in state money, we set guidelines for how it shall be distributed. In carrying out that assignment, the Attorney General has successfully more than doubled the available relief to the victims, without adding red tape," State Senator Luke Kenley said. Kenley, R-Noblesville, is chair of the Senate Tax and Fiscal Policy Committee and is one of the architects of the supplemental compensation legislation.
All claimants who want to participate in the additional compensation – both public and private dollars – must sign a form releasing Mid-America and James Thomas Engineering from any liability and releasing the state from any legal obligations. Claimants who accept these settlements still are able to pursue any litigation against various other private defendants stemming from the stage-rigging collapse. To obtain funds, claimants must complete and return by July 13, a new release form, and a supplemental application, listing their insurance coverage information, out-of-pocket costs, lost wages and other expenses and damages. The Attorney General's Office plans to send letters with instructions to claimants starting next week.
NEW PUBLIC MONEY: SUPPLEMENTAL RELIEF FUND
Last fall, following the August 13, 2011, stage-rigging collapse at the State Fair, Attorney General Zoeller enlisted the expertise of Kenneth Feinberg, the nationally-known expert who designed victim compensation plans after 9/11 and the BP Gulf oil spill. Zoeller's office with Feinberg's help designed a process that distributed the original $5 million in Indiana tort claim funds – the maximum state law allows – to 62 eligible claimants, including estates of seven deceased victims.
In March, the Legislature passed a new state law, House Enrolled Act 1376, that added $6 million in compensation to State Fair claimants, on top of the $5 million the State had already paid. The Legislature's deadline for the Attorney General's Office to distribute the supplemental relief fund is January 1, 2013, but the AG's Office took action to make the money available a few months early. Under this new law, the Legislature established different criteria than the original Feinberg plan and created three legal categories of eligible claimants and amounts they can receive:
1) Estates of the seven deceased victims are eligible to receive payments that increase their totals up to $700,000 each (including the $300,000 in compensation already paid to them in December in the previous tort claim settlement.)
2) Claimants with non-permanent physical injuries who in December had 65 percent of their medical bills compensated could see their amounts increased, up to 100 percent of their out-of-pocket costs, minus any private insurance compensation.
3) Claimants with permanent paralysis or permanent physical trauma can receive additional amounts calculated through an arbitration process, explained below. This will cover past, ongoing and future out-of-pocket medical expenses, but cannot exceed $6 million, minus the sum totals paid to the two earlier categories.
Within the parameters the Legislature set up, specific amounts for all three categories of claimants will be determined by a panel of three independent arbitrators who will review the submitted forms. Claimants with permanent paralysis and trauma will have the right if they wish to appear at hearings before the arbitration board and make presentations about their claims.
Because the supplemental process designed by the Legislature differs from the earlier Feinberg distribution, there is a release form and application that claimants must complete and return to the Attorney General's Office by July 13 to be eligible for the funds. Claimants or their legal representatives are asked to supply any additional relevant medical records along with the signed form. Depending on the arbitration process, amounts could be calculated and payments issued sometime around the beginning of September, well ahead of the January 1, 2013 distribution deadline the Legislature set. Through discussions in the past few months with two of the private defendants, Zoeller's office was able to secure additional private funds to claimants in need.
NEW PRIVATE MONEY
The same release form also allows claimants to participate in private settlements with Mid-America Sound Corporation and James Thomas Engineering Inc. Mindful of a legal assertion being made against the state by Mid-America, a type of claim called indemnification, the Legislature in HEA 1376 directed that payments can be made only to claimants who agree not to bring an indemnification action against the state. By signing the form accepting the state's payment offer, the claimants also release from liability Mid-America and James Thomas Engineering, who in turn releases the state from any liability in connection with indemnification or other claims. This process makes the public and private settlement funds readily available to distribute at the same time.
The settlement package requires claimants who accept the state's offer to also accept the two companies' private offers. Claimants still have the legal right to decline payments from the state and two companies and take their case against the private defendants to court; but the state's additional compensation is not subject to litigation. Last December the state previously paid out all it is legally required to – $5 million – under the existing Tort Claim Act. The Legislature added $6 million as a one-time supplement but specified it is only for the physically injured claimants and estates of those who perished.
Whether they received settlement money last December or not, all claimants or their representatives who previously filed tort claim notices in fall 2011 are encouraged to submit supplemental claim forms. It is possible that some claimants who weren't eligible for state money in the earlier round might now qualify to share in the $7.2 million in private money in this round. Arbitrators will review the submitted information and decide whether the claimants receive private money. While the bulk of the private money is more likely to go to the physically injured, the arbitration panel is authorized to pay a broader group of claimants if circumstances warrant it.
Arbitration hearings are July 16 through the end of August. The panel of three independent arbitrators was agreed upon by claimants' attorneys, defendants and the Attorney General's Office based on their expertise, professional experience and merit.
Bill Baten of Van Winkle Baten Dispute Resolution, who will chair an arbitration panel to allocate this fund to victims of the stage collapse, said, "I commend all those involved in creating a significant settlement fund for injured claimants, as well as in creating a thoughtful process to distribute those funds based on the merits of each individual claim."
CLAIMANTS' RIGHTS PROTECTED
For all three categories of claimants receiving public money, no more than 10 percent of the supplemental relief can be used for attorneys' fees. Estates of the deceased will not have to pay inheritance tax. Any claimant who has been improperly denied coverage for their collapse-related medical expenses can assign their case to the Attorney General and state insurance commissioner to pursue insurers for "bad faith" practices.
Zoeller thanked legislators who added another $6 million and thanked the group of plaintiffs' attorneys who worked with the Attorney General's Office in setting up procedures for the two additional pots of funding.
"No amount of money will replace the lives lost or roll back the clock for those injured, but through prompt payment through this public-private effort, we hope that medical, financial and family needs can be appropriately addressed," Zoeller said.
Claimants with questions should contact their attorneys or the Indiana Attorney General's Office at firstname.lastname@example.org or at 317.232.4866.
Counting the $5 million in tort claim funds paid last year, the $6 million in supplemental relief the Legislature added and the $7.2 million that James Thomas Engineering Inc. and Mid-America Sound Corp. are providing, a grand total of $18.2 million has been offered to claimants. This amount is separate from private donations that the nonprofit State Fair Relief Fund has raised from the community to assist the injured and families of the deceased.