W000274
Tuesday, November 06, 2001 1:23 PM
Notice of Inquiry and Advance Notice of Rulemaking - September 11th Victim Compensation Fund of 2001
Kenneth L. Zwick, Esq., Director
Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue
Washington, DC 20530
Sir:
This office is counsel to the survivors of and , both of whom were employed at the World Trade Center and killed in the tragedy of September 11.
We respectfully write in response to the above-captioned notice of inquiry with respect to proposed regulations under the Air Transportation Safety and System Stabilization Act, P.L. 107-42, the September 11th Victim Compensation Fund of 2001 (115 Stat. 237 et seq., the "Act").
You will receive numerous comments in response to your request, and in the interest of space, will limit our comments to two areas of inquiry: "collateral sources" (Act § 402[4]) and the "personal representative" of a deceased victim (Act § 405[c][2][C]). We have previously communicated with the Attorney General regarding these matters and are pleased to clarify our position in this comment.
Collateral Sources
We understand that reasonable people of goodwill may differ over the policy of whether amounts received by victims or their families from public and private charity should be considered "collateral sources" for purposes of being offset against Title IV benefits. For a variety of reasons, we urge that only amounts received by or on behalf of a victim under a claim of right should constitute a "collateral source." The use of such a bright-line test is not only appropriate under the circumstances but also necessary given the difficulties of administration of the fund and of processing a large number of claims within a short time period. The application of the position we urge would lead to the inclusion of all life insurance, workers' compensation and state victim-compensation sources, but to the exclusion of substantially all other funds received by victims. We do not believe that Congress intended to discourage private charity or assistance to victims by requiring that such sources be applied to reduce federal victims' compensation, and the limited legislative history of the Act suggests no such policy. Quite to the contrary, the multitude of tax-relief and other actions taken by Congress suggests that victims should be entitled to cumulative benefits from a variety of sources. In states which have adopted a collateral-source offset rule, charitable benefits received by the plaintiff are routinely not included. For example, Conn. Gen. Stat. § 52-225b provides, in pertinent part: "Collateral sources" means any payments made to the claimant, or on his behalf, by or pursuant to: (1) Any health or sickness insurance, automobile accident insurance that provides health benefits, and any other similar insurance benefits, except life insurance benefits available to the claimant, whether purchased by him or provided by others; or (2) any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the costs of hospital, medical, dental or other health care services." The definition of "collateral source" in the Act includes certain sources, such as life insurance and pension benefits, excluded by conventional state statute, but there is no evidence of legislative intend to expand the ambit of such sources any further; we presume, as we urge you, that Congress was familiar with such state-law principles and intended to concept of "collateral sources" to be applied consistently with its plain, everyday meaning. The use of the word "compensation" in the Act is strongly suggestive that voluntary payments by third parties should be required to be excluded. Finally, the application of any other rule leads to absurd results. If benefits received from public charities are deemed "collateral sources," then there is no reason not to include beneficences from friends and neighbors, free meals and shelter, mortgage payment indulgences or even the fair market value of pro bono or reduced-rate services from attorneys and accountants. Such a reductio ad absurdum analysis leads to the conclusion that charitable funds of all kinds should not be considered "collateral sources." For these reasons, we believe that a narrow construction of "collateral sources" is appropriate and comports most closely with the intention of Congress in enacting the Act.
Personal Representative
"Personal representative" is a term of art in estate practice but undefined in the Act; the use of this term leads to the result that Congress may have unintentionally excluded the surviving spouse, next of kin, heirs at law and other dependents of the deceased from having standing to assert a direct claim under the Act unless that person is also the "personal representative" appointed by a probate or surrogate's court with respect to the estate of the decedent. As a result, impecunious claimants may be required to commence expensive and time-consuming state probate proceedings in order to obtain the appointment of an executor or administrator, even if there are no probate assets. Moreover, the executor or administrator may have dispositive obligations under a will or trust which differ from the conventional distribution scheme assumed in wrongful death litigation. This cannot be an intended result and should be cured through regulation. For this reason, we urge that the "personal representative" of a deceased claimant be defined through regulation to include a claimant who would otherwise be entitled to seek a survivor's benefit under state law. Disputes regarding the entitlement of any particular claimant to serve as "personal representative" must be resolved by resort to the state law of the decedent's domicile, but state-court proceedings which have resulted in the final determination of any such matter should be accorded deference. The Special Master must be empowered to resolve not only such differences but also the claims of multiple claimants with respect to any single victim, regardless of the nature of the claim. Otherwise, the expeditious and inexpensive claims system contemplated by Congress would be easily thwarted through the threat of, or required resort to, ancillary judicial proceedings.
Thank you for the opportunity to comment.
Very truly yours,
Law offices of Hilary B. Miller, Esq.
Greenwich, CT