A005487
November 26, 2001
Kenneth L. Zwick, Director
Office of Management Programs
U.S. Department of Justice
Civil Division
Main Building, Room 3140
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Mr. Zwick
In response to your request for comments
about the Victims Compensation Fund, here are my
thoughts.
I agree this type of settlement will expedite
compensation for my loss, however, I do have some
reserves regarding it. I have attached a copy of a
letter sent to you from . Her and I,
along with hundreds of other women, became widows
on that dark day of September 11th. We are mothers,
my daughter is 10 months old, who are finding it
extremely difficult to hold our heads above water.
Although we are in the same boat our needs are
very different. This letter expresses my exact thoughts
and requests. I am in total agreement of what has
been written to you.
Sincerely,
Individual Comment
Sayreville, NJ
attachments
November 20, 2001
Kenneth L. Zwick, Director
Office of Management Programs
U.S. Department of Justice
Civil Division
Main Building, Room 3140
950 Pennsylvania Avenue, N.W.
Washington, D.D. 20530
Dear Mr. Zwick,
With heavy hearts we write this letter to you representing not only ourselves, but the
hundreds of other families whose loved ones were either hurt or killed in the tragic events
of September 11, 2001. On that day, our lives spiraled out of control. Writing this letter to you in response to your request for comments about the Victims Compensation Fund is
one step in our efforts at regaining control over our new lives, and learning to have hope
for tomorrow.
The Victims Compensation Fund's intent is to make whole the families of the victims.
While the fund is set up as a convenient, expedient process, we are concerned and do share
some reservations about its ability to make us whole.
OPPORTUNITY TO BE HEARD
Most important, we are concerned that we will not be given a complete and full
opportunity to be heard, should we choose to do so. Each of us rightfully deserves the
opportunity to be fairly heard before a hearing officer. We would like to have the occasion
to present evidence through our own testimony and the testimony of expert witnesses. We
would like for each of our cases to be considered on a case-by-case basis. For many of us,
being given the right to be heard is a crucial and extremely valuable part of our healing
process. Lack of economic means should not foreclose such an opportunity. We hope that
you can understand this.
Currently, most, if not all of us, are in financial distress. We do not have the economic
means to hire the necessary experts for our particular cases. We do not want to be
precluded from retaining the services of these expert witnesses simply because of our own
financial inability to do so. Therefore, we believe that all expert fees should be paid
directly out of the compensation fund by the Special Master, and that there should be no
limit on garnering such fees.
RIGHT TO APPEAL AND FORM OF PAYMENT
One of our greatest concerns is that the current statutory schemes are removing our
options. With the passage of the most recent legislation removing all public entities from
fault, we are left with one viable means of recovery - Victims Compensation Fund.
Please understand, by electing the Fund we are forfeiting our right to bring a third-party
lawsuit. We are forfeiting our right to find actual fault against an entity(the federal
government, the Port Authority, the airlines, etc.)- that would psychologically provide us
with some kind of answers as to why this horrible event was even able to occur.
If we are forfeiting our right to bring a third-party lawsuit, we should be guaranteed a right to appeal in exchange. If we are going to put our fate in the hands of a hearing officer, we should at the very least have the right to appeal his or her decision.
We would also like the option to receive any payments made either in one lump sum, or
through a structured pay out to the decedent's beneficiary, consistent with what our
personal investment advisors recommend for each of our individual family circumstances.
For example, any payment made to minor children should be in trust. In addition, the
parent of said minor children should determine the date of vesting. The trust should not
automatically vest at the age of 18, unless the parent determines that it is in the children's own best interests to do so.
ECONOMIC LOSSES
Of critical importance to us, is the fair computation of economic losses. We strongly
oppose any cap being placed upon this portion of recovery. Simply put, no one should be
penalized because their loved one worked long, hard hours and earned a "good salary".
Every case is unique and deserves individual treatment, but we would like to know
beforehand how economic damages will be calculated for loss of earnings and work related
benefits. This will, at least, provide us with a base from which we can begin to make a
decision as to whether the fund will provide us with adequate compensation to survive.
We request an approach similar to that used in personal injury actions. However, neither
age nor marital status should be a discriminatory factor. Retirement should be set at age
68. The decedent's income should be averaged over the past 3 working years.The decedent's age should be subtracted from 68. Those two numbers should be multiplied
together, thereby gleaning a starting point for computation. From this base point, other
factors such as inflation, wage-increases, merit, likely bonuses and advancement, and any
other benefits should be considered. We should be given the right to present expert
testimony to prove these losses.
For many, the lost income streams may be contingent, variable, or unpredictable. We do
not believe that our families should be penalized because of this. The hearing officers
should be permitted to consider the testimony of experts concerning such things as the
likelihood of advancement, the bonus scheme unique to each company and each
department in each company, economic cycles, performance reviews, as well as, how the
compensation of other co-workers progressed during the course of their working lives. In
commissions, as a base, we believe that the hearing officer should consider the average of
the best three out of five years of employment.
NON ECONOMIC LOSSES
There should also be absolutely no cap on the non-economic losses awarded by the Fund.
Each person's circumstances must be evaluated individually. Each case should take into
account the decedent's age, the marital status, and the number and ages of the decedent's
children. Moreover, the severity of pain and suffering(both mental and physical) of not
only the decedent, but also the spouse, children, parents, and next of kin of the decedent
should also be evaluated.
Non-economic losses should be calculated similar to that in personal injury actions. But,
again, neither age, marital status, nor dependency status should be a detriment. Special
consideration must be given to the fact that eyewitness testimony concerning the horrific
pain and suffering endured by our loved ones may be impossible to elicit. Thus, the
hearing officer should consider the reports and/or testimony of expert witnesses who may
describe based upon their training and experiences what the decedent went through both
mentally and physically prior to his or her own death. Hearsay testimony should be
permitted.
Moreover, we do not believe that there should be a limitation on the types of injuries to be
compensated. We are concerned that we may suffer from real and devastating emotional
harm not immediately apparent after the attack; harm for which we should be
compensated. In addition to personal injury, we may suffer the loss of the ability to earn
an income, we may incur large medical bills, etc. All of these things should be
compensated for by the Fund.
We strongly oppose any attempt to place into a formula or matrix a predetermined
methodology for calculating our other losses. Each family situation is different. We have
the right to be treated as individuals.
Compensation for non-economic losses is crucial to the survival of some families, such as
the firemen and policemen's. Any family who has a considerable amount of coverage in
life insurance will need some incentive to enter the Fund, since life insurance proceeds are
currently scheduled to be deducted from any recovery. We strongly disagree with the
proposal as outlined below. Certainly, we would expect any non-economic recovery from
this Fund to be generous in light of the terrible circumstances of September 11th.
COLLATERAL SOURCES
Finally, we are very concerned about the possible use of collateral sources to offset any
amount recovered from th Fund. Life insurance should not be deducted from Fund
payments. Simply put, life insurance is not taxed by the IRS for one reason-it encourages
people to plan for their heirs. To deduct any life insurance from Fund payments would
penalize those who were merely responsible estate planners. The decedents sacrificed and
saved hard-earned money to pay for such plans. They are already victims once, do not
make them victims twice. At the very least the premiums paid should be offset
against the life insurance deductions.
Moreover, pension funds, IRA, and 401k plans should not be deducted from the fund's
recovery amount. Again, our loved ones sacrificed to save for these plans as part of a
responsible estate planning program. Essentially, they are savings accounts, and they
should not be deducted from any award received from the Fund.
There should be no deductions from any Fund recovery for any "in kind" contributions
made to our families. In addition, all potential future collateral source payments should
similarly be excluded from consideration as deductions from any compensation recovery.
With regard to charity, Americans across this country donated their hard-earned money as
a symbol of their patriotism, and our brotherhood as a nation. To deduct this charity
money from any final payment would, in our opinion, be wrong. Donations made to
families like us were generously and selflessly given to us as a form of healing for both
donor and recipient. Every single dollar donated and received gives each one of us a hope
for tomorrow and a belief in our country as a united whole. Please do not denigrate this
beautiful symbol of our nation standing together as one by turning it into dollars and
cents computation.
In closing, we sincerely thank you for considering our comments. We are all struggling
through extremely difficult times. Your asking for our input about the Victims
Compensation Fund--something that will have an enormous and tremendous bearing on the
rest of our lives--truly and honestly gives us a small bit of peace in our restless minds. We can only ask you to please keep our children and ourselves in your hearts during the weeks ahead.
Sincerely,
Comment by:
September 11th Victims Families
Colts Neck, NJ