W000426
November 20, 2001
Kenneth L. Zwick,
Director, Office of Management Programs
Civil Division, USDOJ
Attached are my comments concerning the notice of inquiry for the September 11th Victims
Compensation Fund of 2001. I am neither an attorney nor accountant. I simply reviewed your
proposed regulations and processes as an affected party. My main concern is that the USDOJ institute
regulations and processes that are far simpler than those that would be required in litigation. I have
read many articles quoting attorneys and economic experts about the complexity of determining a
proper compensation in this case. If the fund requires this type of legal and economic efforts, then it will
be a failure to not only the victims and their loved ones, but to the entire country. The USDOJ must not
lose sight that the main purpose of the fund is to fairly compensate victims and their families quickly and
to avoid costly litigation for our country.
Attachment 1:
Re: September 11th Compensation Fund of 2001
Dear Sir:
I have reviewed the USDOJ's notic of inquiry and advance notice of rule making for the
September 11th Victims Compensation Fund of 2001. I performed my review to assess its impact on
myself as a beneficiary and its impact on my fiduciary responsibilities as an estate administrator. My
comments are as follows:
1) Regarding the plan to implement regulations as interim final rules, I feel this is very important.
The rules need to be reviewed and commented on so that any concerns or problems that would
lead claimants to pursue other legal avenues can be minimized. This is important because the
intent of the fund is not only to minimize pain for survivors and the loved ones of those lost, but
to reduce the cost and pain to our society that would result from lengthy litigation in a public
forum.
2) Claim forms must be made as simple as possible and spell out exactly what information and
supporting documentation is required. This is necessary in order to avoid possible rejections
and delays, thereby inflicting even more pain on the claimants.
3) The Special Master should hold hearings for all claims. This will make certain that a claimant's
case is not misinterpreted, resulting in an improper award. Improper awards will lead to a
public outcry since claimants will give up their right to sue and will have no right to appeal the
award. This would lead to claimants feeling that not only did the Federal Government fail them
on September 11th, but also they mislead them and duped them into an unfair settlement.
4) I am strongly opposed to any offsets from collateral sources such as insurance that would be
due a decedent's estate under normal circumstances. I believe that offsets for workman's
compensation death benefits and accidental death policies are reasonable offsets. However,
reducing awards for charitable contributions is wrong, since these grants are intended only to
help people carry on in the short term and are not a permanent solution as is insurance. Also,
including charitable contributions as offsets is a misguided policy. This policy would take funds
from the injured party and in effect give it to the government who itself must bear some
responsibility for the claimants injuries or deaths because it did not provide proper airline
security laws as confirmed by the hasty passage of the airline safety act. I also oppose reducing
awards for life insurance that a decedent purchased to protect their family and estate under the
assumption of normal death, not terrorism. Finally, because there will be no social security
payments made to decedents, or their heirs on their behalf, these heirs are entitled to receive as
much as possible because the government will not be making social security payments
otherwise payable to the decedents.
5) Any award should be free of federal and state income taxes as well as estate taxes. Also,
Attorney and Accountant fees should be paid directly out of compensation awards.
6) I strongly support the USDOJ's belief that claims should proceed without economic experts.
However for this to occur the USDOJ can not request that claimants specify an amount of
compensation sought, because to determine this amount would require economic experts.
Therefore, to accomplish this task the USDOJ must establish a set of simple formulas for
determining economic compensation that can not be open for interpretation. I suggest setting
up two formulas, one for personal injury and one for wrongful death. The personal injury
formula should include lost wages and medical expenses. The wrongful death formula should
be based on a loss of future earnings to the decedent's estate had they not died prematurely.
Since my situation involves wrongful death, I will focus my comments on this type of claim. The
formula should utilize a decedents current total earnings at the time of death, take into account
the years until retirement and escalate these earnings for each year until retirement in order to
determine the decedents future loss of earnings. This amount can then be reduced by any
offsets (see note 4) and reduced to a present value that would equal the future loss of earnings if
invested conservatively. This method should be used for all cases to make the process as
simple as possible. Economic loss determinations should not be based on any other factors
other than earnings. Other factors such as dependents should be handled as a non-economic
loss. Non-economic losses will include pain and suffering or mental anguish and loss of care
and companionship to the survivors. Decedents who made less money then others should not
receive a larger economic loss simply because they had more dependents. However, we as a
society need to help care for these dependents, so I propose an additional fixed amount of
money be awarded to all claims with dependent children and parents above and beyond the
economic loss award. This amount would address the loss of care aspect of non-economic
losses and should be predetermined and not subject to the Special Masters discretion. Other
factors related to non-economic losses can be subject to the Special Masters determination
based on the factors of the claim. For example, did the claimant suffer before their death, was
the claimant directed to return to their office by the building management only to be trapped.
However, since the point of this fund is to encourage its use as opposed to litigation, I propose
a minimum award be established that can be increased at the discretion of the Special Master.
By establishing simple formulas for economic losses and fixed amounts plus minimum awards
for non-economic losses, the USDOJ will provide a mechanism to determine the minimum possible
award prior to filing a claim. I feel this method is fair to claimants who will give up their right to sue as
well as provide a strong incentive to avoid litigation and encourage the use of the Victims Compensation
Fund.
Sincerely,
Individual Comment
Kings Park, NY