N002591
January 15, 2002
Mr. Kenneth L. Zwick
Director
Office of Management Programs
Civil Division
United States Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue
Washington, D.C. 20530
Dear Mr. Zwick:
I write to comment on the Interim Final Rule governing the administration of the
September 11th Victim Compensation Fund of 2001, Title IV of Public Law 107-42, the Air
Transportation Safety and System Stabilization Act (the "Act").
It is my understanding, and indeed Special Master Kenneth Feinberg noted in his
statement which accompanies the Interim Final Rule, that the purpose of the Act, "is not simply
"to examine economic and noneconomic harm, but also to provide compensation that is just and
appropriate in light of claimants' individual circumstances." (Emphasis added.) It is my further
understanding that an additional purpose of the Act is to provide stability in the airline industry
by encouraging victims' families to seek relief through the fund rather that in protracted litigation
with the airlines and others.
After reviewing the Interim Final Rule and considering numerous comments I have
received from victims' families, it is my belief that the Interim Final Rule does not serve those
purposes. Moreover, I believe that the "collateral source" provisions of the Act are inconsistent
with these purposes, and should be re-examined by Congress before final rules for the
distribution of funds are adopted.
As Borough President of Staten Island, I represent the borough of New York City that
was hardest hit by the September 11th attacks. Chief among the complaints I have heard from
my
constituents is that life insurance proceeds and pension benefits should not be counted as
collateral sources to be deducted from awards from the fund.
Clearly, deducting such benefits from fund awards is not "just and appropriate in light of
claimants' individual circumstances." If taking "individual circumstances" into account is to
mean anything, it must mean that victims who provided for the welfare of their families should
not have their plans frustrated by the Act. Penalizing the survivors of responsible individuals
who have sacrificed financially to provide for their retirements and their families in the event of
their untimely deaths is unjust and inappropriate, and will ultimately achieve the perverse effect
of discouraging settlements.
Another area of great dissatisfaction is the amount of the awards that are to be made
under the Interim Final Rule for presumed non-economic loss. Based upon the many comments
I have received, the general consensus among victims' families is that the presumed non-
economic loss is far too low. Indeed, it has been widely noted that settlements of less grievous
personal injury claims frequently exceed the amount of the award fixed by the Interim Final
Rule, In view of the fact that the number of victims has fallen significantly since the Act became
law, funding for increased awards should be readily available. To promote the purposes of the
Act of providing "just and appropriate" relief and encouraging settlement, the Special Master
should increase significantly the presumed non-economic loss award.
I believe that the very small number of claimants who have filed for compensation from
the fund is clear evidence that the issues outlined in this letter are in fact impeding the purposes
of the Act. The lives of many of my constituents will be affected dramatically by rules that are
ultimately adopted by the Special Master, and on their behalf I urge Mr. Feinberg to give serious
consideration to the issues raised herein.
Thank you.
Sincerely
James P. Molinaro
JPM/pjm