N001881
Wednesday, January 16, 2002 11:01 AM
Public Comment on Interim Final Rule
January 15, 2002
Mr Feinberg,
On September 11th my brother , an attorney for , was among those who lost their lives in the terrorist attacks
on the World Trade Center. There are no words that can describe the
sickening horror of that day. Nor are there words for the frantic
desperation that I and others experienced in the subsequent days as we
hoped against hope that our loved ones had somehow survived. Unfortunately,
our hopes were not to be.
I am thankful for the outpouring of support and help provided by so many
volunteers and concerned citizens. I was also pleased by the passing of the
Airline Stabilization Act on Sept 22nd. While no amount will ever replace
the loss of , the Victim Compensation provisions offered hope that
affected families could move beyond the tragedy of September 11th without
the daunting prospect of wrongful death litigation.
From my reading of the Act, the Fund was intended to offer victims and
their families an alternative to litigating against the airlines, airports,
security personnel and others whose negligence resulted in the deaths of
thousands. (It is my belief, that the hijacking of not one, or two or even
three but four airplanes within hours of each other is ample evidence of
negligence.) Conceptually I agree with the intent of the act, both in the
interests of preserving the financial integrity of the airline and
insurance industries as well as for expediting settlements to victim's
families.
The Interim Rules however are woefully off the mark. I have three areas of
concern. They are:
(1) the absence of a minimum award including all collateral sources of
compensation
(2) a cap on awards for high wage earners
(3) the inclusion of voluntary payments by employers as a collateral
source.
I will take each point and expand on my concern.
1. Absence of a minimum award
A requirement of participation in the Fund is foregoing any further civil
litigation related to the terrorist attacks of Sept 11th. Due to the
relatively low minimum awards for economic and non-economic losses prior to
collateral reductions, it is probable that certain victim's families would
receive nothing from the Fund. As a result, there would be no incentive for
participation. Indeed the very thing the Fund had sought to prevent,
costly litigation and settlements, would be the path it would dictate
following! Furthermore, each claimant should feel secure that an equitable
and consistent settlement process exists prior to submitting to the
process. What sense does it make to ask families to waive their right to
civil action when the outcome is unknown?
2. Cap on awards for high wage earners
We live in a country of great opportunity and reward for those willing to
be industrious. That work ethic and success should not be denied in
determining economic loss. As currently structured, the regulations
require 3 years of earnings history in establishing an economic award. If
that 3 year period places a person at the upper bound of earnings why would
it not follow that person would continue that performance level throughout
their careers? While only a few might be impacted by a cap, its very
existence is cause for alarm as it works against the consistent treatment
of claims.
3. The inclusion of voluntary payments as a collateral source
Section 402 is very specific as to what constitutes a "collateral source".
As described, the collateral sources represent legally obligated payments
to the victim's families as the result of the victim's death. Charitable
and voluntary payments are not specifically mentioned. Certainly, Congress
was fully aware of the tremendous outpouring of generosity on the part of
the American public in funding earmarked funds such as the Liberty Fund,
the Sept 11th Fund, etc. Yet, they chose not to include these as
collateral sources. Why? In my view it was because Congress recognized the
voluntary nature of the contributions and that these funds should not be
used as offsets to otherwise legitimate economic and non-economic claims.
Consequently, I am very concerned by talk that
voluntary decision to ear mark a percentage of future earnings for victim
relief would be included as a collateral source. As was the case in my 1st
point, the inclusion of voluntary payments in determining economic and non
economic losses only serves as a disincentive to one of the stated
objectives of the Fund. Why structure regulations that produce results
contrary to what was intended?
No business bore a heavier loss in terms of its most essential asset than
. Almost employees of the firm perished on Sept11th ,
including my brother . Since that day, and other representatives have worked tirelessly in representing the
interests of the families of the victims. They have my full and unwaivering
support in all matters related to the Sept 11th tragedy, including the
Victims Compensation Fund.
These past 4 months have been extremely difficult as I balance my efforts
to console a grieving mother, handle the responsibilities of my
profession, tend to my wife and young children while attending to my
brother's estate in a city 400+ miles from my home. There is nothing I
would like more than a quick resolution of estate issues so that I can
begin to enjoy the many memories of growing up with rather than
contending with seemingly endless paperwork that only bring back haunting
images of his death. Please modify the guidelines for the Victim
Compensation Fund so that it becomes a viable option for others and myself.
Respectfully
Individual Comment
Pittsburgh, PA