Originally created 08/18/05

Judge OKs Graniteville wreck settlement



AIKEN - A federal judge on Wednesday approved a financial settlement between Norfolk Southern railroad and people evacuated after the Graniteville disaster, an agreement that lawyers for both sides praised for its swift completion and fairness.

U.S. District Judge Margaret Seymour ruled that the estimated 5,400 people who were evacuated after the Jan. 6 wreck are eligible to join the class action lawsuit against the railroad.

The railroad has agreed to compensate people for evacuation, property damages and mental side effects suffered by those who did not seek medical help within 72 hours of the accident.

Evacuees will be paid either $1,000 or $2,000, depending on how long they were kept from their homes. People were kept away three to 13 days. The railroad also has agreed to pay for lost wages and items such as spoiled food.

The chlorine that crept across the tiny mill town corroded metal in homes and vehicles that the railroad will pay for.

The railroad will pay $200 per day per person for fear and anxiety caused by the evacuation.

The judge gave tentative approval to the settlement in May. Since that time, about 3,300 people have applied for payouts and 1,063 opted out of the class, though not all of them were eligible to begin with, said Joe Rice, an attorney from Mount Pleasant who is among attorneys who represented plaintiffs.

The railroad already has accepted more than 300 of the claims, and about a dozen of those will likely be paid this week, said Sheila L. Birnbaum, an attorney from New York City who represents Norfolk Southern.

Plaintiffs' attorneys will be paid 25 percent of the final settlement, which won't be determined until the railroad finalizes negotiations with claimants. The final payout to residents will range from $8 million to $12 million, Mr. Rice estimated.

Attorneys are typically paid a percentage of the final settlement, which would have meant less money for evacuees. This settlement is remarkable in that the attorneys' portion of the pie won't reduce what residents are paid, lawyers told the judge.

Compared to past class action lawsuits against railroads that involved mass evacuation, the Graniteville lawsuit was settled in a hurry, said plaintiffs' attorney Ronnie Penton, who told Judge Seymour that past cases have taken 10 years and longer to settle.

"This case is the most noble I've seen in my 24 years of doing this work," he said.

Still, some plaintiffs expressed confusion over terms of the settlement and said they aren't entirely happy with the agreement.

Tina Bevington, who was among 13 plaintiffs named in the class action lawsuit, said in an interview before the hearing that some residents should be compensated for declining property values.

"This is about what's fair and equitable," she said.

But an appraiser who testified for the railroad and researched property sales in Graniteville since the incident said values haven't gone down. In cases where the railroad had paid for damaged wiring and appliances, values actually went up.

The railroad settled many claims soon after the accident. Even people who have received payments are eligible to join the lawsuit, but they'll be paid only for damages for which they have not already been compensated.

Judge Seymour agreed to let people join or decline the settlement until Sept. 15.

An estimated 500 people sought medical help after the accident. Nine people were killed.

The railroad has settled with the family of one of the deceased and is negotiating with the others, Ms. Birnbaum said.

It faces an unresolved wrongful death lawsuit and at least six other lawsuits that are seeking punitive damages.

The railroad maintains that while the accident was a tragedy, it did not act recklessly.

The railroad "did everything in its power to help the community of Graniteville with this incident," Ms. Birnbaum said. "In regards to this settlement, it's done the same thing.

"We don't believe that there is any punitive damage here," she said.

Reach Josh Gelinas at (803) 648-1395, ext. 110, or josh.gelinas@augustachronicle.com.