## Facts

- Representatives of New York City firefighters who died in the World Trade Center collapses alleged the firefighters failed to receive evacuation orders because FDNY radio-transmission equipment malfunctioned or was inadequate.
- Plaintiffs alleged Motorola, Inc. supplied radios it knew were ineffective in high-rise buildings, failed to warn of limitations, and made fraudulent and negligent misrepresentations about the radios to obtain City contracts.
- Plaintiffs alleged the City of New York breached statutory and common-law duties to provide adequate and safe communications equipment and otherwise failed to meet firefighter-safety obligations.
- Plaintiffs asserted a “concerted action” claim alleging the City and Motorola jointly engaged in fraudulent and deceitful conduct concerning firefighter protection and radio capabilities.
- After Congress created a federal Victim Compensation Fund for September 11 victims, plaintiffs filed Fund claims and received compensation.
- Plaintiffs nevertheless filed a federal wrongful-death action against the City and Motorola; the district court dismissed based on the Fund waiver, and plaintiffs appealed.

## Issues

1. Whether the Victim Compensation Fund waiver bars wrongful-death actions against the City and Motorola after claimants elect and receive Fund compensation.
2. Whether deaths allegedly contributed to by radio failures are “damages sustained as a result of the terrorist-related aircraft crashes of September 11, 2001” within the waiver’s scope.
3. Whether the waiver is limited to claims against airlines or aviation-related defendants, or extends to non-airline defendants whose alleged conduct contributed to 9/11 injuries.

## Decision

- The Second Circuit affirmed dismissal of the complaint.
- The court held that by filing Fund claims and receiving compensation, plaintiffs waived any civil action for damages sustained as a result of the September 11 terrorist-related aircraft crashes.
- The waiver applied to plaintiffs’ claims against both the City and Motorola, including product-defect, failure-to-warn, misrepresentation, and concerted-action theories tied to the firefighters’ deaths.

## Legal Principles

- A statutory election to receive compensation from a no-fault fund may require a waiver that bars later civil actions seeking damages for the same injury-producing event.
- “Damages sustained as a result of” can reach harms proximately caused by the covered event even if additional contributing causes (including alleged negligence or defective products) are pleaded.
- A waiver’s scope is governed by its text; absent limiting language, it may extend beyond a particular industry and bar claims against any defendants when the damages arise from the covered event.
- Allegations that a defect or wrongful conduct pre-dated the covered event do not avoid waiver where the damages sought are wrongful-death losses occurring in and because of the covered event.

## Conclusion

Because plaintiffs elected and accepted Victim Compensation Fund payments for deaths occurring in the September 11 attacks, the statute’s waiver barred their wrongful-death suits against the City of New York and Motorola, notwithstanding allegations that defective radios and related misconduct contributed to the fatalities.


Virgilio ex rel. Virgilio v. City of New York, 407 F.3d 105 (2d Cir. 2005)