The state is asking a judge to honor a $100,000 cap on damages in a successful wrongful death lawsuit brought by the parents of two Virginia Tech students who were among 33 killed in a shooting rampage on the Blacksburg campus nearly five years ago.
Attorneys for the parents have asked the court to award each family $2 million despite a state cap on damages. They have said the money would come from a plan that provides liability coverage for the official actions of state workers.
In a filing this week, the state said the court would be acting "without jurisdiction and commit clear, reversible error by ignoring the plain language" of Virginia's Tort Claim Act capping damages against the state and the provisions of the Risk Management plant.
"Whatever path the plaintiffs ask this court to take," the state wrote in its filing, "the destination is the same. The sole defendant in this case is the commonwealth, no judgment can be entered against any other party, and no applicable `liability policy' exists with maximum limits in excess of $100,000."
The state was the lone defendant named in the lawsuit.
After an eight-day trial, a Circuit Court jury in Montgomery County concluded March 14 that the state was negligent when it delayed alerting the campus on the morning of April 16, 2007, that two students had been shot and mortally wounded in a dorm. The shootings were the first by student gunman Seung-Hui Cho, who killed 30 more and then himself about 2 1/2 hours later in what was the deadliest mass shooting in modern U.S. history.
The jury awarded the families of Julia K. Pryde and Erin N. Peterson each $4 million. Jurors were unaware of the state cap on damages when they were deliberating.
In a bid to skirt the cap, attorneys for the families have asked the state to provide details on the liability coverage for President Charles W. Steger and Tech Police Chief Wendell Flinchum and the nonprofit Virginia Tech Foundation, which lists assets topping $1 billion.
Flinchum told Steger that investigators at the scene of the first shootings on April 16 believed the two were gunned down by a jealous lover and the gunman, who remained at large, was not a threat to the wider campus.
The state responded: "Any insurance covering Wendell Flinchum and Charles Steger changes nothing because no judgment can be entered against them."
Attorneys for the parents also cited the wrongful death lawsuit brought against Virginia Tech by the family of a student who committed suicide. The family of Daniel Sun Kim had sought $43 million after he was found Dec. 9, 2007, with a self-inflicted gunshot wound in a car in a Christiansburg parking lot.
The state agreed to pay $250,000 and create a $100,000 scholarship fund to settle the suit, among other provisions.
The state said the distinction in the two wrongful death actions was that Kim's family named a state worker in their lawsuit.
"The plaintiffs' omission of the critical distinction between the Kim case and this case only amplifies the fundamental flaw in the plaintiffs' arguments for a larger monetary recovery," the state said in its court filing.
The lawsuit the Peterson and Pryde families filed was the last pending litigation stemming from the shooting. The state has not decided whether to appeal.
Last week, a judge ruled that federal education officials were wrong to conclude the university's response to the shootings violated federal law. In doing so, Administrative Judge Ernest Canellos dismissed a $55,000 fine against the school and determined that the university officials' actions didn't violate the Clery Act, which requires schools to issue timely warnings of campus threats.
Virginia Tech officials have consistently defended their actions in the shootings, stating they were working with the best information they had at the time.
The Petersons and the Prydes were the only eligible families to reject their share of an $11 million dollar settlement in 2008.
Steve Szkotak can be reached on Twitter at http://twitter.com/sszkotakap.
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