N002554
January 21, 2002
Kenneth L. Zwick, Director
Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building - Room 3140
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Re: Victim Compensation Fund of 2001 - Interim Final Rule
Dear Mr. Zwick:
The undersigned, as general counsel for the Uniformed
Firefighters Association of Greater New York, hereby submit
comments on the "Interim Final Rule" promulgated pursuant to Title
IV of the Air Transportation Safety & System Stabilization Act.
These comments are also being sent on behalf of counsel for
the Uniformed Fire Officers Association. Together, both firms
represent all uniformed firefighters and fire officers of the Fire
Department of the City of New York.
We believe that the Interim Final Rule (hereinafter "IFR")
must be modified in several ways, both in the interest of fairness
and in order to properly comply with the intent of Congress and
the specific language of the statute. We also note that even
though we represent the firefighter community, many of our
comments are applicable to all victims of the September 11, 2001
attacks.
Re: Special Master Feinberg
January 21, 2002
Page 2 of 8
Our specific comments are as follows:
Eligibility
The IFR defines eligible individuals to include claimants who
were "present" at the World Trade Center "at the time or in the
immediate aftermath of the crashes."
The IFR defines "immediate aftermath" to be up to 12 hours
after the crashes, except for rescue workers. For those rescue
workers, the time period is currently expanded to 96 hours.
However, the IFR requires that an injured claimant have an
objectively verifiable physical injury that was treated by a
medical professional within 24 hours of sustaining the injury or
within 24 hours of rescue.
We submit that the 24-hour requirement noted above is
unreasonable. We particularly have in mind the thousands of New
York City firefighters who responded to the 09/11/01 attacks at
the World Trade Center and thereafter continued to search for
their fallen brothers. We have heard countless stories that no
firefighters were taking medical leave given the tremendous losses
the Fire Department suffered and the emotionally-charged
environment requiring that they stay at Ground Zero to help.
We are also sure that many non-rescue workers were too dazed
of frightened by the events of 09/11 to seek care within 24 hours
of being hurt.
We suggest that reviewing hospital and/or medical records
will adequately insure that anyone claiming injury was actually
hurt in the "immediate aftermath" of the attacks as defined by the
rule. It would be grossly unfair to penalize any individual
present during the attacks or who risked life and limb in rescue
efforts for not having taken the step to seek medical treatment in
the first 24 hours after being hurt.
Re: Special Master Feinberg
January 21, 2002
page 3 of 8
Beneficiaries
Section 104.3 of the IFR provides that those qualifying as
beneficiaries shall be determined under the laws of the decedent's
domicile. Under current New York law, a "registered domestic
partner" would not share in the proceeds of a wrongful death
recovery. Nevertheless, it is clear that those firefighters, and
others who had "registered domestic partners" under the New York
City Administrative Code (Sections 3-240, et seq.), wanted them to
be treated as if they were their spouses. We respectfully suggest
that the IFR be amended to include a provision that a "registered
domestic partner" be entitled to participate in any award to the
same extent as would a spouse under State law.
Economic and Non- Economic Loss/Collateral Sources
The most troublesome provisions of the IFR relate to the
calculation of economic and non-economic losses and the manner in
which collateral source payments server to reduce the net recovery
of a claimant.
Section 402(5) of the Act defines economic loss to mean "any
pecuniary loss resulting from harm...to the extent recovery for
such loss is allowed under applicable State law."
In reviewing Section 104.43 of the IFR, however, it seems to
focus solely upon calculations geared to a loss of earnings
resulting from the decedent's death (in addition to medical
expenses and burial costs).
A review of the applicable New York law reveals additional
components of economic loss that are not at all addressed by the
IFR.
Under New York law, the loss of services of the decedent by
his distributees are an integral part of economic loss. No
mention of this is made in the IFR.
Re: Special Master Feinberg
January 21, 2002
Page 4 of 8
I am aware that the rules contend that a portion of the
awards for "non-economic losses," namely $50,000.00 for the
surviving spouse and each dependent include a non-economic
component of "replacement services loss."
It is impossible to judge from the IFR the amount of this
"component." Furthermore, since it is an across-the board benefit
for every death claim, it certainly has no relationship to the
actual circumstances of individual cases. This can create a great
injustice.
For example, we are aware of a situation in which the surviving
widow is legally blind and relied entirely upon her late husband
for household work, transportation, home repairs and just about
everything else.
We are also aware of a situation in which a widow has severe
emotional problems requiring that her late husband do nearly all
household chores and essentially act as a nurse for his wife on a
daily basis.
We respectfully submit that whatever portion the "replacement
services" loss of the $50,00.00 for spouses and each dependent
may be, it would be clearly inadequate in these and similar cases.
Simply put, the rules ignore the potentially significant
concept of economic loss under New York law for the loss of
services component of wrongful death damages. We are certain that
testimony from forensic economists will establish a much greater
value for this item of economic loss than permitted by the IFR.
An even more glaring omission is the failure of the IFR to
provide any form of compensation for the economic loss of the
intellectual, moral and physical training and guidance that a
deceased parent would have given his children. Loss of this
parental care and guidance is a traditionally significant element
of wrongful death damages under New York law. For example,
enclosed herewith please find a copy of a decision of the
Appellate Division, Second Department, in Paccione v. Greenberg,
Re: Special Master Feinberg
January 21, 2002
Page 5 of 8
256 A.D.2d 559, 682 N.Y.S.2D 442 (2d Dep't, 1998) permitting a
damage award of 1.5 million dollars per child, aged three and six,
for wrongful death of their mother.
With respect to non-economic loss, the rules set a basic
$250,000.00 figure, plus an additional $ 50,000.00 for the spouse
and each dependent of the victim. As noted above, a potion of
the $50,000.00 for the spouse and each dependent is alleged to
have a "non-economic" component.
In defining non-economic loss [Section 402(7)], the language
of the Act is very broad and includes within the definition, "loss
of society and companionship, loss of consortium and hedonic
damages and all other non-pecuniary losses of any kind or nature."
Significantly, unlike the statutory definition of economic
loss, the definition of non-economic loss is not limited to those
allowed under applicable state law.
Nevertheless, the IFR award for non-economic loss for
decedents contains none of these elements - nothing is awarded for
loss of consortium, loss of enjoyment of life or hedonic damages.
We respectfully submit that inclusion of these items should result
in a substantially larger award for non-economic loss than
"presumed" under the IFR.
Collateral Compensation
We are aware of the constraints placed upon the Special
Master by the definition of "collateral source" contained within
the Act.
However, we believe the IFR gives an overly broad and
incorrect interpretation of the manner in which the collateral
source deduction of an award is to be made. It appears that once
the amount of economic and non-economic losses are calculated,
collateral source payments received by the claimant are deducted
from the total in an "across-the-board" approach.
Re: Special Master Feinberg
January 21, 2002
Page 6 of 8
We submit that the methodology outlined in the IFR is both
unfair to claimants and contrary to prevailing law. For example,
pension payments made to a widow are clearly intended to replace
the lost earnings resulting from the death of her husband.
Therefore, if reductions are to be made, they would be properly
subtracted from the lost earnings' component of economic loss. It
makes no sense, however, to reduce the non-economic loss portion
of the award by a pension or, for that matter, even the economic
portion of the award which is not related to a lost earnings' claim.
In that regard, you are respectfully referred to the decision
of the New York State Court of Appeals in Oden v. Chemung County
Industrial Development Agency, 87 N.Y. 2d 81, 637 N.Y. s 2d 670
(1995) requiring that collateral source deductions be made only
when they represent reimbursement of a particular category of loss
for which damages were awarded.
Similarly, it also makes little sense to deduct pension
payments, life insurance payments or other payments made to a
surviving spouse from that portion of an award intended to
compensate children of the decedent for their loss of parental
care and guidance. We respectfully submit that further thought
should be given to the manner in which collateral source
deductions are made so that they can be properly allocated to the
appropriate portion of the award and not unfairly penalize the
claimants and the decedents' distributees.
Furthermore, any collateral source deductions must not
include contributions by the decedent, earnings on those
contributions or the premiums paid for the life insurance
coverage.
Nor with respect to pensions should there be deduction for
that portion already earned or vested by the decedent.
Finally, with regard to injured but surviving police and
firefighters who were disabled by their injuries, and receive a
line-of-duty disability pension, it would make no sense to deduct
Re: Special Master Feinberg
January 21, 2002
Page 7 of 8
the present value of that pension from anything but the loss of
earnings component of the claimant's damages. Otherwise, the pain
and suffering component of claimant's award would be substantially
eliminated and a non-disabled claimant would receive more than one
who was disabled.
Life Insurance
At the risk of stating the obvious, we believe the IFR should
make clear that if the decedent left a life insurance policy
payable to persons who are not interstate distributees, that life
insurance should not be deducted from claimant's award. Only the
beneficiary of the life insurance payment should be subject to the
collateral source deduction of such payment.
Taxes
The Special Master's explanation of the manner in which
presumed awards for economic loss are calculated state that:
"Projected future income is adjusted to account for taxes that
would have been paid." Once again, this is contrary to prevailing
law. Under New York law, unless there is an express statute to
the contrary there should be no deduction of taxes in calculating
the value of the loss of future earnings. [See, Johnson v.
Manhattan & Bronx Surface Transit Operating Authority, 71 N.Y. 2d
198, 524 N.Y.S.2d 415 (1988).]
Forfeiture of Right to Sue
One of the provisions that has caused great consternation to
survivors and the families of deceased victims of the September
11th attacks is the rule that filing of a claim constitutes a
permanent waiver of the right to file or be party to a civil
action. While we are not unmindful of the language of Section
405 (c) (3) (B) (i), we believe it would be equitable and appropriate
for the final rules to define "submission of a claim" as to
include the announcement of a "presumed award" by the Special
Master. Only in that way can individuals who suffered tremendous
losses on September 11th make an intelligent and informed choice of
Re: Special Master Feinberg
January 21, 2002
Page 8 of 8
whether to take advantage of the Act or seek re-dress through
litigation. There is no question that the Act creates an
unprecedented nature of this method that creates such
uncertainty among the claimants. We submit that there will be no
prejudice to the government or potential civil defendants if the
above noted suggestion is adopted.
Life and Work Expectancy Tables
We are advised that the life and work expectancy tables
utilized by the Special Master in calculating the presumed awards
set forth in the IFR are out of date and unfair. They
particularly ignore the increased role of women in the workplace
and the fact that individuals today work much longer than in the
past. We suggest that any tables used be the most up-to-date and
reflective of the reality of today's work force.
We ask that the Department of Justice seriously consider the
above comments, as well as the comments submitted by others.
Thank you.
Very truly yours,
Comment by:
Counsel for THE UNIFORMED FIREFIGHTERS ASSOCIATION of GREATER NEW YORK
and
Counsel for THE UNIFORMED FIRE OFFICERS ASSOCIATION
New York, NY
Attachment 1
682 New York Supplement, 2d series, 25e A.D.2d 559
Paccone v Greenberg