N001609
Tuesday, January 15, 2002 7:18 AM
January 14, 2001
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
Re: Comments to the Interim Final Rule
Dear Mr. Zwick,
Thank you for trying to ?do the right thing? by all of the parties involved
in the September 11th attacks on America. All Americans were violated on
that horrible day. As we all know, no amount of money could come close to
adequately compensating the families of victims for what they are going
through.
After a thorough review of the proposed interim rule, I have the following
comments:
1. Calculation of Income. For purposes of determining economic losses, a
victim?s base compensation appears to be his or her pre-tax earnings for the
three-year period 1998-2000, including salary and bonus plus certain
employer benefits. Why would the formula choose to use 1998 and ignore the
victim?s most recent salary in 2001? Most of the victims were employed for
nine out twelve months in 2001 and it would be easy to extrapolate the
victim?s full 2001 salary. In many cases it would seem that the 2001 salary
would be more indicative of a victim?s actual earning potential than his or
her 1998 salary would. This is particularly true for younger victims who
in most cases would have a much higher salary in 2001 than in 1998. Which
year is more relevant? In the case of many of the victims, certainly the
2001 salary is more relevant. The regulations should be amended to allow
the claimant to have the option to use either 1998 or 2001 in the three-year
average. This can be done by amending the second and third sentences of
Part 104.43 of the regulations pertaining to salary to read:
?The Decedent?s salary/income in 1998-2001 shall be evaluated in a manner
that the Special Master deems appropriate. The Special Master may, if he
deems it appropriate, take the higher of (i) an average of income figures
for the three years 1998 through 2000, or (ii) an average of income figures
for the three years 1999 through 2001.?
The regulations also need to be a little more clear on what ?certain
employer benefits? means. It would seem that all employer costs associated
with compensating the victim should be considered a part of his or her
compensation. This would include employer premiums paid for health
insurance, dental insurance, life insurance, and workers? compensation
insurance. It should also include employer contributions to a victim?s
pension plan or 401K plan. These types of payments are no less a part of
compensation than a victim?s salary was.
2. Calculation of Non-Economic Loss. It appears that the interim final
rules ignored the Statute in determining non-economic losses. While it is
impossible to scientifically calculate the proper amount to award for
non-economic losses, the amount of ?presumed non-economic loss? of $250,000
plus $50,000 for each of the victim?s spouse and dependants is not in
concert with the Statute. The Statute passed by Congress and signed by the
President defined ?non-economic losses? in twelve categories, including
losses for:
- physical and emotional pain,
- suffering,
- inconvenience,
- physical impairment,
- mental anguish,
- disfigurement,
- loss of enjoyment of life,
- loss of society and companionship,
- loss of consortium (other than loss of domestic service),
- hedonic damages,
- injury to reputation,
- and all other non-pecuniary losses of any kind or nature.
There is no mention in the final interim rule of any of these specific
losses that the Statute requires to be awarded. The Statute did not say
that victims would only be awarded the same amount as ?roughly equivalent to
the amounts received under existing federal programs by public safety
officers who are killed while on duty or members of our military who are
killed in the line of duty.? The victims of September 11 were not public
safety officers or members of the military killed in the line of duty. They
were clerks, waiters, accountants, office workers and executives who were
murdered when innocently going to work one Tuesday morning in September.
They were murdered for what they symbolized, America?s freedom and economic
success. They were murdered because of a failure by the airlines, security
firms and the government to put adequate safeguards in place to properly
protect the nation?s air transportation system.
Congress decided that it would be in the best interest of the nation to
prevent the collapse of the airline industry by limiting lawsuits brought by
victims, and these victims are entitled to receive compensation in line with
what Congress spelled out in the Statute. The amounts received by public
safety officers or military members referred to in the interim rules are in
the form of life insurance. The amount of this life insurance is totally
unrelated to pain and suffering, mental anguish and other non-economic
losses and was not arrived at by weighing all of the factors that the
Statute lists.
Although Congress could easily have written the Statute to state that
non-economic awards should be comparable to awards given to public safety
officers or the military, it chose not to do so. Rather Congress
specifically spelled out the factors that should be considered in
determining the amount of non-economic damages. Yet, the interim final
rules chose to ignore these factors and substitute the judgment of Congress
with this ?comparable to the military? calculation. It should also be noted
that (i) life insurance payout to public safety officers and members of the
military are not contingent upon the deceased or his family giving up his
right to sue for wrongful death (ii) the life insurance payout to public
safety officers and members of the military are not reduced by collateral
sources including the amounts of any additional life insurance that such
public safety officers or members of the military may have purchased on
their own behalf, and (iii) the life insurance payout is made whenever a
public safety officer is killed while on duty regardless of the cause of
death, regardless of how much suffering was involved, and regardless of who
was at fault. Since life insurance, pensions and other ?collateral sources?
are deducted from amount paid to September 11 victims under the Statute,
many victims will receive substantially less from the Fund than a public
safety officer or member of the military would receive under that federal
statute.
There is no doubt that a jury would award a significantly higher amount for
non-economic damages in a court action (Courts have awarded higher amounts
than this to people who were burned by spilling cups of hot coffee on
themselves). In many cases the September 11 victims suffered indescribable
pain, agony and mental anguish for prolonged periods of time (up to several
hours). All of this time the victims were aware that they were going to die
a horrible and painful death.
I understand that it would be difficult to address non-economic pain and
suffering on a case-by-case basis as who is to say which victims suffered
more than others. I think the rules are correct in having a set amount for
all victims. However, the amount needs to consider the factors set forth by
Congress in the Statute. One way to come up with an amount for non-economic
damages is to take an average of what was awarded by juries in cases where
victims suffered greatly for prolonged periods of time, knowing that their
fate was to die within hours. Each of the factors that Congress included in
the Statute must be considered in arriving at a fair amount to award for
non-economic damages.
Increasing the amount of non-economic damages would help to solve two other
criticisms of the interim rules. (1) it would help to close the gap in
awards between highly compensated individuals and lower compensated
individuals, and (2) it would increase the gross amount of the awards prior
to deducting life insurance and other collateral sources of income making
the fund a more viable alternative to many that would otherwise file law
suits. A significant increase in the non-economic awards would go a long
way toward bringing the interim final rules into concert with the Statute
passed by Congress.
3. Victims Engaged to be Married. The treatment of victims who were engaged
to be married at the time they were killed on September 11 is not addressed
in the interim final rule. Fiancées appear to have no standing under the
fund, even though they were often the person who was the closest person to
the victim and the person whose life was affected the most dramatically. In
addition, the compensation charts (particularly the calculation estimating
how much of his compensation a victim would have personally consumed) assume
that the victim would not have kept his or her promise to marry. If a
victim was married without children the interim rules calculate his or her
economic loss using a ?consumption factor? that is based on the victim
sharing his earnings with his spouse. Meanwhile, a person who is unmarried
is deemed by the charts to have consumed almost all of his earnings himself.
This is so even though the victim is engaged to be married and planned to
have children, and would not have consumed all of his income himself. While
it is speculative to estimate the number of children, if any, that a victim
would have had, it is not speculative to assume that the victim would have
gone through with his or her promise to marry and thus have a lifetime of
mutual support. If a victim was engaged to be married the chart showing
?Married Decedent with No Dependent Children? should be used. The fact that
September 11 cut short the lives of some of the victims at a time when they
had not yet completed their plans to wed should not create an assumption
that the victim?s future personal consumption would have been that of a
single person.
While overall, I think the interim final rules represent a good effort to
treat victims fairly, I believe the above changes will solve some of the
issues that remain and bring the rules more into line with the provisions of
the Statute.
Thank you for considering the above comments.
Individual Comment
Ballston Spa, NY