N001741
VIA FACSIMILE - 301-519-5956
Mr. Kenneth L. Zwick, Director
Office of Management Programs, Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Re:
Dear Mr. Zwick:
On behalf of our client, , this letter is
being submitted to offer our comments on the proposed regulations
governing the Victim Compensation Fund of 2001.
was a passenger on American
Airlines flight 77 which crashed into the pentagon on September 11.
At the time of his death, was 54 years old and was a civilian
employee for the Department of Navy. He was a physicist.
was a wonderful husband to and father to their
daughter, , who is a high school senior, and to his
step-son, . Their family was very close, and was so
looking forward to seeing go off to college next year.
College was something for which had worked and saved for many
years and he was determined to insure that could go to any
institution that she might choose. In this endeavor, had a
college savings plan set up at work so that a certain amount was
deducted from his salary with each paycheck. This was but one way
he prepared to pay for 's college.
was the family's principle wage-earner, although
's long time employee of the Prince George's County Maryland
public school system. As such his earnings were critical to the
family's financial well-being. More importantly, however, is the
deep and painful grief that they all fell over the loss of father,
husband, care-giver, companion and friend.
Because was a federal employee, and was working at
the time of his death, the family is perhaps, in a better
financial position than other victims of this tragedy. By virtue
of the fact that was flying on government business, they are
the beneficiaries of a flight insurance policy. In addition, in
lieu of 's death and pension benefits which were earned and
waived, is now receiving one-half of 's last annual
salary, in monthly installments, as a worker's compensation death
benefit. These benefits will continue for the rest of 's life.
According to the proposed regulations, the Special Master
will consider 's pre-tax earnings for 1998-2000. Presuming
that the Master uses the average of these figures (rather than the
final year's figure which is more accurate for a government
employee), 's annual earnings would be approximately $101,066.
Again assuming that would work until age 62 (8 more years),
with the presumed increase of 4.2% per year, 's gross future
earnings would be approximately $937,905. This figure must then be
reduced to present day value at the interest rate of 5.13% (a rate
greater than the presumed inflation rate) and a "consumption
factor" which is not specified in the regulations. Even if we
assume this combined reduction at a very conservative gross figure
of 15%, the future earnings of is approximately $797,219. To
this figure should be added the Non-Economic Loss of $350,000,
which "compensates" and , resulting in a combined loss
award of approximately $1,047,219.
Section 104.47 requires the Master to reduce this figure
by the amounts received from defined collateral sources. Assuming
that the worker's compensation payments are included as a
collateral source, then neither nor will receive any
payment from the fund. In short, all benefits, including the
compensation for their emotional pain and grief, will be
eliminated.
It is probably an impossible job to create a fair system
of compensation out of these tragic events. Nevertheless, this
legislation was brought about to accomplish two objectives. The
first was to reach out to the families of the victims and try to
fairly compensate them for their losses. The second was to protect
the airline industry from potentially crippling litigation. As you
know, should any victim initiate suit against the airline, none of
the collateral sources contemplated by these regulations would be
deducted from a recovery.
Based upon our rough calculations, is currently left
with three choices: 1) participate in the fund, waive her rights
against the airline, and receive no payment; 2) undergo the anguish
and uncertainty of a lawsuit against American Airlines which may
take years to resolve; 3) do nothing at all. None of these
choices achieves the stated Congressional purpose " to provide
compensation to any individual who was physically injured or killed
as a result of the terrorist-related aircraft crashes of September
11, 2001."
We respectfully suggest that the regulations be amended
in one or both of the following ways:
1. Define the collateral sources in such a way as to
exclude benefits previously earned by the victim. In
case, he chose to be a government employee because the
work was important. In so doing, he gave up opportunities to do
important work and to make far more money in the private sector.
By choosing a government job, he, like so many of his peers,
elected to make less money while better insuring family security by
availing himself of the substantial pension and death benefits that
are available. As these benefits are already earned, the current
regulations serve as a form of penalty by deducting them from the
potential recovery. Earned benefits are the equivalent of savings
and should not be used as a deduction from any compensation from
the fund.
2. Deduct the collateral source money from Economic
Loss calculation only. Even if a victim's family is fortunate
enough to have collateral compensation to cover a wage earner's
loss, the pain, grief and emotional suffering is no less. The
amount dedicated for Non-Economic Loss should not be reduced by any
payment, thereby providing a guaranteed amount for all victims as
well as fair consideration for waiving their legal rights against
the airlines.
Thank you for your consideration and I hope that you will
find a way to reform the regulations so that they may provide real
comfort to all victims.
Very truly yours,
Individual Comment
Rockville, MD