N002530
January 18, 2002
BY FAX AND REGULAR MAIL
Mr. Kenneth L. Zwick, Director
Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue NW
Washington, DC 20530
Dear Mr. Zwick:
As you know, the Interim Final Rule implementing Public Law
107-42 (the September 11th Victim Compensation Fund of 2001) has
been published for comment at the U.S. Department of Justice
website. By this letter, I submit to you my comments on certain
aspects of the Interim Final Rule.
My concern focuses on a potentially serious ancillary result
which may adversely affect a number of claimants who file claims
against the Fund. Specifically, the wording of the Interim Final
Rule appears t be at odds with the wording of the Eligibility Form
(DOJ Form SM-001). In the Interim Final Rule, "Subpart F -
Limitations" and Section 104.61 of such Subpart state that "...upon
the submission of a claim under the Fund, the claimant waives the
right to file a civil action (or to be party to an action) in any
federal or related aircraft crashes of September 11, 2001..."
[emphasis supplied] However, item 2 of "Section IV - Advance
Benefits" of the Eligibility Form, in which the claimant
acknowledges waiving the right to file a civil action, also states
"Please note that this Waiver of Rights could apply to the rights
of individuals other than the claimant." [emphasis supplied].
Thus, unlike the Eligibility Form, the Interim Final Rule
makes no reference to potential rights of individuals other than
the claimant, or to the waiver of such rights. I believe that this
difference of language is critical, and must be harmonized either
by modifying the Eligibility Form, expanding the language of the
Mr. Kenneth L. Zwick, Director
Office of Management Problems
January 18, 2002
Page Two
Interim Final Rule, or making both of these changes. Permit me to
illustrate my concern by using a hypothetical example.
Suppose a World Trade Center decedent is survived by a wife,
no children, and the decedent's parents. Further suppose that the
wife has been judicially appointed as the sole legal representative
of the decedent's estate. As I understand New York law, the
provisions of EPTL 5-4.4 (a) would entitle the parents as deemed
distributees to share in damages obtained in a wrongful death
action brought by the wife as fiduciary. This result would occur
even though, for purposes of intestacy, the widow would be the sole
distributee. Therefore, once the wife makes a claim against the
Fund, she presumably forecloses any possibility that the parents
would have had to either commence a wrongful death action or to
share in damages obtained in such action.
The Eligibility Form is seemingly innocuous in its statement
that the waiver of rights could apply to the rights of individuals
other than the claimant. I submit that if the claimant wife is a
lay person and has no legal counsel (or even for that matter if she
has such counsel), the wife and/or her counsel could readily gloss
over any implication of the Eligibility Form's statement upon
reading it. Would it not be preferable to give the wife and/or her
counsel action notice in the Eligibility Form that those
"individuals other than the claimant" could include the decedent's
parent or parents? Otherwise, unless she received a written
release form the decedent's parent(s), the claimant wife could end
up defending a subsequent lawsuit brought against her by such
parent or parents, asserting that she had no legal authority to
waive the rights of the parent(s) or to preclude them from bringing
a wrongful death action on their own.
Of course, this hypothetical example assumes that the claimant
wife can legally waive the rights of any third person who is not a
signatory to the Eligibility Form. I suspect that this issue will
ultimately be determined by a Federal court. The wife is arguably
not the agent (actual or under apparent authority) of the
decedent's parent(s). It is true that the wife as sole fiduciary
in my hypothetical would have the exclusive legal ability to bring
a wrongful death action, for the benefit of the decedent's
distributees (see EPTL 5-4.4), and may thereby be able to
derivatively bind the parents to a waiver by claiming under the
Mr. Kenneth L. Zwick, Director
Office of Management Problems
January 18, 2002
Page Three
Fund. However, it is theoretically possible for the parents rather
than the wife to become legal representative of the estate and
thus bring a wrongful death action on their own.
Based upon the foregoing, I propose the following:
1. Section 104.61 of "Subpart F-Limitations" of the Interim
Final Rule should be modified to add this language in bold type at the
end: "This waiver of rights could apply to the rights of
individuals other than the claimant, such as a parent or parents of
the deceased, who may be able to share in the wrongful death damages
pursuant to applicable state law. Claimants should consult with
counsel prior to submitting a claim under the Fund."
2. Item 2 of "Section IV - Advance Benefits" of the
Eligibility Form should be modified to expand the existing language
to read as follows, all in bold type: "Please note that this Waiver
of Rights could apply to the rights of individuals other than the
claimant, such as a parent or parents of the deceased, who may be
able to share in wrongful death damages pursuant to applicable
state law. Claimants should consult with counsel prior to
submitting a claim under the Fund."
Thank you for providing the opportunity to make this submission.
Respectfully yours,
Individual Comment
NEW YORK, NEW YORK
MB/
s:\MSB\CORRES.22\3-5