N002615

January 15, 2002

Mr. Kenneth Feinberg, Special Master of the September 11th Victim Compensation Fund of 2001
In Care of Mr. Kenneth L. Zwick, Director
Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue
Washington, DC 20530

Re: Comments on the Interim Rule of the September 11th Victim Compensation Fund of 2001

Dear Mr. Kenneth Feinberg:

I am writing to ask for your help to correct two inequities in the Department of Justice's Interim Final Rule for the September 11th Victim Compensation Fund of 2001 that will result in many families receiving no compensation from the fund. This is because (1) the projected economic and non-economic loss figures are unrealistically low; and (2) the Fund reduces any award by the amount of money a victim family received from a "collateral source."

When Congress passed the Air Transportation Safety and System Stabilization Act on September 22, 2001, it severely restricted September 11 victims' right to sue the airlines, which bear ultimate responsibility for the tragedy because of lax security procedures. In exchange for denying victim's right to sue, Congress provided the September 11th Victim Compensation Fund of 2001. The Fund is supposed to compensate the victims' for the types of losses that would have been recoverable in a lawsuit, but without the burden and delay of litigation.

The Interim Rule/Regulation also describes the intention of the law:
"The Fund is designed to provide a no-fault alternative to tort litigation for individuals who were physically injured or killed as a result of the aircraft hijackings and crashes on September 11, 2001"{Interim Rule/Regulation, Summary Paragraph A.1}.

"The attached regulations have two objectives: (1) To provide fair, predictable and consistent compensation to the victims of September 11 and their families throughout the life of the program; and (2) to do so in an expedited, efficient manner without unnecessary bureaucracy and needless demands on the victims." {Interim Rule/Regulation, Supplementary Information.}.

The Interim Final Rule fails to meet the intent of Congress, however, because many victims' families will net nothing after collateral source funds are subtracted from the already undervalued economic and non-economic loss projections.

The Interim Final Rule understates economic loss by underestimating the lifetime earning potential of victims at all income levels. Noted economists at the National Association of Forensic Economists showed that the Interim Final Rule uses outdated statistics and inappropriate methods to arrive at low estimates of our loved one's future earnings. An analysis done by one of these economists showed that the actual earnings growth for firefighters is 27% higher than the DOJ estimate, the actual earnings growth of all college educated workers is 30% higher than DOJ indicates, and actual earnings growth for financial professionals is more than 100% higher than the DOJ estimate.

The Interim Final Rule also falls short of Congress's goals for non-economic loss. The figure for presumed non-economic loss compensation of $250,000 plus and additional $50,000 for the spouse and each dependent is rationalized as being roughly equivalent to the amounts received by public safety officers who were killed while on duty, or members of the military who are killed in the line of duty while serving our nation. With all due respect to such public safety officers and military personnel, they choose to go into harm's way and their loss is not the result of corporate negligence. On the other hand, the September 11 victims are victims of negligent airline security. Perhaps more realistic guidance as to the value of non-economic losses recovered in other air crash and terrorism cases commonly result in awards of between $2 million and $5 million. A more reasonable projection of non-economic loss is probably somewhere between the current proposal and the historical litigation result.

The Interim Final Rule reduces any compensation awards by the amount of any funds received from collateral sources, including life insurance. The Interim Final Rule does this because Congress included such a provision in the Air Transportation Safety and System Stabilization Act. That does not make it fair; that does not make it right. In many states, the law on "the collateral source rule" has been well settled for over one hundred years. Under that rule, damages recoverable for personal injury or death, caused by the negligence of another, cannot be reduced because of compensation received by proceeds of an insurance policy. This is because the wrongdoer owes full compensation for the injuries inflicted by them and any payment by a collateral source in no way relieves the wrongdoer of their obligation. In this instance, the airlines and others at fault owe full compensation for the injuries resulting from their negligence. Any payment by a collateral source in no way relieves the airlines and others at fault for their obligation. This collateral source rule, which has been a fundamental part of tort victim compensation for over a hundred years, needs to be incorporated into the September 11 Victim Compensation Fund.

The Interim Final Rule needs to be adjusted to provide fair, balanced and acceptable economic and non-economic loss projections. The economic loss charts need to be increased and expanded depending upon the deceased's job field. The non-economic loss amounts also need to be increased into a range that accounts for the tragic way in which these innocent victims died and the shattered lives they left behind. Collateral source recoveries need to be excluded from consideration by the Fund. Without these changes, the intent of Congress will not be fulfilled because there will be no reason for many of the September 11 victim families to participate in the Fund. Without these changes, it will be better for many victim families to take a chance at litigation rather than sign on to a Fund through which they will receive nothing but a waiver of their right to sue.

Please rectify these inequities and do what is right for the victim families. Give the victim families a reason to participate in this Fund rather than litigate. Change the Interim Final Rule to provide economic and non-economic amounts at fair, balanced and acceptable levels; do not offset Fund awards by collateral source recoveriews; establish a fair appeal process. Finally, please include the specific calculation formulas, statistics and assumptions within the rule or the explanatory materials.

Sincerely,

Individual Comment
Newbury Park, CA

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