N002526
January 18,2002
Kenneth L. Zwick
Re: Comments on the Interim Rules September 11
Victim Compensation Fund of 2001
Dear Mr. Zwick:
I am writing on behalf of four families who were killed in the
attacks of September 11, 2001, to comment on the Interim Rule.
We object to the presumed award and their manner of
calculation. I recognize the awards are not intended as full tort
compensation, and that there is a "trade off" element involved
attempting certainly and finality in exchange for the uncertainty
of litigation. However, the "trade off" goes too far. The
victims are asked to forego all tort claims in exchange for the
presumed award. Waiver of civil litigations extends not only to the
airlines, airports and World Trade Center operations, but also to
the United States and in particular the Immigration and
Naturalization Service (INS) and the Federal Aviation
Administration (FAA). It is arguably applicable to actions against
individual terrorists and the states that sponsor them.
The emergency legislation enacted in the wake of the attacks
provides relief and protection to the airlines. The Federal Torts
Claims Act (FTCA) imposes significant hurdles of its own for claims
against the United States. Yet, it is the malfeasance of the
United States and the airline industry that set the stage.
The presumed award suffers from the following defects:
1.) The pain and suffering component is below what a jury
would reasonably be expected to award or an insurance carrier offer
in settlement;
January 18, 2002
page 2
2.) The economic loss component unfairly penalizes
successful, responsible families due to the collateral source
reductions;
3.) The Interim Rule provides no guide as to what is intended
by "extraordinary individual circumstances" nor how they will
impact on the award and what proofs will be required to support a
finding of extraordinary individual circumstances;
4.) Economic loss calculations are skewed downward by use of
national averages, ignoring the reality of the loss of talented
adults employed in New York City.
The fixing of the presumed award at a lower than reasonable
level coupled with the drastic effect collateral source reductions
will have together withe transfer of tax dollars to culpable
airline industry actors is inequitable. It is a lowest common
denominator approach to unique circumstances. In short, the
survivors end up paying for the protection of the airlines. Claims
should be dealt with on a case-by-case basis and awards entered
without regard to the presumed award calculations in the absence of
a definition of extraordinary individual circumstances.
The entire structure of the legislation pressures almost all
claimants to enter the program, without consent. The normal rules
have been disturbed to the benefit of the airlines and the
government. There should be consideration given to the survivors
for that, over and above the presumed award.
Very truly yours,
Individual Comment
Freehold, New Jersey
VPM/cf