N001496
Thursday, January 10, 2002 10:53 AM
Comments regarding Legislation, PL 107-42 (HR 2926)
My name is and as father, surviving family member and duly
appointed administrator of the Estate of offer
these comments to the interim final rules published on December 21, 2001.
The Legislation, PL 107-42 (HR2926) dated September 22, 2001 was
created to protect the airline industry and, I believe, the United States
Government by substantially compelling the victims and their families to
accept the monetary compensation offered pursuant to the Fund set up by the
Act and thereby forestalling the possibility of mass litigation against
those found responsible for allowing these terrorist crimes to occur. The
regulations proposed on December 21, 2001, while setting forth a procedure
for compensating victims and their families, certainly ignore the spirit and
mandate of the Act to seek in some measure to provide fair and reasonable
economic recompense for those lost or seriously injured.
For me and my family, only return to life will make us
whole. Recognizing that not to be possible, the Special Master's refusal to
even recognize my son's (and those similarly situated) full economic
potential is insulting, painful and, if left uncorrected, will cause the
families of those adversely affected to seriously contemplate what the Act
expressly wants avoided, the commencement of litigation against those
responsible for this tragedy. To set the record straight, what I am
suggesting does not grow out of greed, but out of a sense of obligation to
show the world in the only way afforded to us by the Act how special our
lost loved ones were.
If the spirit of the Act is intended to recognize the economic loss
of the decedents, a significant group of them should not be singled out and
treated differently. By choosing to cap earnings at up to 98%, which, by
the way, is nowhere found in the Act, the Special Master would fully
recognize the economic loss of all families of victims earning less than
$231,000 per year, while in a significant number of cases severely
penalizing, if not belittling, the achievements of those whose financial
remuneration on average exceeded this arbitrary cap.
Elsewhere in the regulation, the Special Master advises that on
issues like deductions for Collateral Sources, his hands are tied by the
mandate of the Act. While one could argue the unfairness, for example, to a
victim who prudently provided substantial life insurance, the Special Master
is correct that the legislation requires, in some cases, massive deductions
for life insurance. By capping income at 98%, for many of the same
families, it results in doubling the adverse impact and for many,
substantially eliminating any Fund compensation.
There is no justice under the Act unless all families suffering an
identical loss are treated the same. If a victim earned $20,000, that
family should receive the full economic benefit of 100% of those earnings
calculated out over the economic life of the individual and brought to
present value. Likewise, if a victim made a million dollars a year, that
family should receive the same treatment. Anything less constitutes
unfairness, injustice and ample reason for rejecting the Fund and seeking
one's day in Court. This is especially true where the family has nothing to
lose because the Special Master's unwarranted 98% cap when coupled with the
Act's discount for Collateral Sources reduction results in little or no
benefit under the Fund. I submit that is not what the Act intended. The
Special Master should amend the rules to allow the derivation of economic
loss based on earnings up to 100%.
Regarding non-economic loss, the Act's only mandate to the Special
Master was to follow what the State courts would allow in determining such
losses. State courts in New York, for example, award hefty damages upon
showings of pain and suffering. With the catastrophic incident that
occurred, the lack of individual credible evidence to discern the facts of
each case and the sheer number of cases involved, one can readily understand
the logic the Special Master employed in concluding flat sums for victims
and their dependents. I would submit however, that in his zeal to implement
this concept he has over simplified it and given no credence for palpable
pain and suffering where it can easily be demonstrated.
I would suggest the creation of a separate flat sum category
differentiating the physical and emotional pain and suffering for those
trapped above the impact area of each of the World Trade Center buildings
from those who were physically located below it, and that the amounts to be
awarded to each class be increased. was a trader for
Cantor Fitzgerald* on the 104th floor of Tower One. The airliner hit his
building at the 90th floor, instantly and completely cutting off all means
of escape for the over 1300 people located above the 90th floor. None of
them escaped or survived and for a period of up to one and one-half hours
after impact, and the others vainly attempted to find a way out and at
some point came to realize their ultimate fate. I would submit that their
pain and suffering was substantially different and greater than, say, a
worker on the 72nd floor of the same building who after the impact,
continued working or delayed departure and ultimately was trapped in the
eight seconds it took for the building to collapse. A separate category
should be established to recognize the pain and suffering of all those who
spent up to one and a half hours without hope and those who died in the
eight seconds period of collapse. I would also propose that the flat sum be
set at $1,000,000 for those above the impact area and $500,000 for those
below.
If the Special Master heeds these comments and adjusts economic and
non- economic losses accordingly, it will result in fair and equitable
compensation for all the victims' families and truly encourage all of these
families to avail themselves of the Fund and not consider costly and time
consuming litigation.
Thank you for the opportunity to make these comments.
Individual Comment
East Norwich, New York