R002720
Monday, March 25, 2002 5:35 PM
service loss in death cases
My name is and I am a volunteer with Trial Lawyers Care representing approximately 6 victims. In the course of reviewing the final
regulations on economic loss I note that there is no explicit discussion of
serivce loss. The only reference is contained on page 11 of 27 where it
states that "It is relevant to note comments suggesting that the economic
loss calculations fail to incorporate sufficiently replacement servies loss.
The Special Master recognizes that such losses are variable, and thus
claimants may present at a hearing indivualized data to support a departure
from the presumed award". It would appear to me that this does not provide
for appropriate standards of review for submission of such data. The
regulations should explicitly recognize service loss and commit to
compensating for it. This is an element of pecuniary loss in wrongful death
cases in virtually every jurisdiction. It should not be relegated in the
regulations to a possible category of damages that would depart from a
"presumed award". Service loss is not an element of consortium or pain and
suffering. Service loss is seperate and distinct from wage losss. It is a
real element of pecuniary loss under wrongful death statutes and is capable
of valuation under standard accepted principles of economics. The loss of a
husband, wife , father or mother always involves as an element of economic
loss the services the surviving family members lost. The failure to
recognize this element of damages suggests that the Special Master can
ignore it or fail to factor it in as an element of economic damages.
Leaving it as a vague reference in the regulations will cause unfair
results. Many victims who do not have assistance of counsel may not
understand that this is an aspect of damages to submit information on. Lay
people do not understand damages in wrongful death cases and would have no
idea that service loss is compensable. Lay people would not understand how
to present the loss. Compensation for service loss should not hinge on the
sophistication of the victim or the imagination of their lawyer. Why should
some receive compensation and others not? Why should awarding any damages
for service loss be left up to the discretion of the Special Master? What
factors will guide his decisionmaking process?
It would also be helpful to provide for the range of services that the
Special Master will recognize as compensable and to provide recognized
valuation figures to be utilized in computing it. This would assure
uniformity of awards. Over what period of time will the Special Master
recognize these awards? Who is eligible? All of these issues should be
addressed so that victims can understand what moneys they are eligible for.
This element of damages is especially important to families with children
that lost a parent. If the Special Master is going to deduct the economic
value of collateral source benefits from an award because of statutory
mandates, it should also prescribe inclusion of all elements of economic
loss in an award to make sure the victim is made whole.
Your guidance on this issue will be of enormous assistance to families and
their victims.
Individual Comment