N001892
January 8, 2002
To: Kenneth L. Zwick
Director, office of Management Programs
Civil Division, USDOJ
Re: September 11th Victims Compensation Fund of 2001
Dear Sir:
I have reviewd the USDOJ's interim final rules for the September
fund of 2001 and have the following comments:
1. The intent of the fund is not only to minimize the pain for
survivors and the loved ones of those lost, but to reduce the cost
and pain to our society that would result from lengthy litigation
in a public forum. I feel the USDOJ failed to meet these goals of
the victim's fund. This has become obvious to anyone involved since
as of January 7th only 100 people have filed claims. The most
troubling aspect of the final rules is that it minimizes every life
lost or person injured in this terrorist attack. Never in the history
of our country have we experienced such a horrific act of murder and
terrorism on our soil. To suggest that the emotional loss, pain and
suffering could be compared to anything we every experienced before is
absurd and desecrates the memory of those who died in this attack.
The government has an obligation to these citizens and their families
to acknowledge this pain, which was caused by our governments failure
to act on known weaknesses in our country's security. Though the fund
will not pass judgement on who is to blame, the Special Master,
Congress and the President know in their hearts, the government failed to
protect its citizens. The amount of $250,000 for these people's lives
is disgraceful. People who sue for car accidents in wich a person did
not even intentionally get hurt or kill someone reciever far more for
pain and suffering. How can this be the case? The special master said
that he can not and will not playy Solomon, yet inserting such an
arbitrary number he is doing just that. I urge that this number be
increased to at least $500,000 and not be subject to offsets.
The collateral offsets should only be applied to economic losses, since
the collateral offsets established in the Air Transportation Safety
Act are monies that are designed soley to support families economically
not to east their pain and suffering.
2. The USDOJ needs to provide exact details of what constitutes collateral
sources. As the rules currently stand there is too much uncertainty
for a person to waive their right to sue. The government must
eliminate this uncertainty, so that when a person calculates their
claims value, they can be almost 100% certain of the amount they would
receiver before waiving their right to sue. As i stated in my first
response to the USDOJ, improper awards will lead to a public outcry
since claimants will have waived their right to sue and can not appeal
their award. This would lead to claimants feeling that not only did
the Federal Government fail them on September 11th, but also thay mislead
them and duped them into an unfair settlement. The plan as it is currently
set up has already tled to public outcries and a minimal number of people have
filed fo rclaims under the plan. This alone should make it clear to the USDOJ
that the plan they ahve set up is inadequate and lacks the compassion it
so needs.
3. I am strongly opposed to any offsets from collateral sources such
as insurance that would be due a decedent's estate under normal
circumstances. The status specifically states that. "The Special
Master shall reduce the amount of compensation determined
(under paragraph(1)(B)(ii) by the amount of collateral source compensation
the claimant has received or is entitled to receive as a result
of the terrorist-related aircraft crashes of September 11th, 2001".
I believe the statutes wording supports my claim that all funds paid
as a result of death not specifically related to the September 11th
terrorist attacks are not part of the collateral offset. The USDOJ
policy takes funds from the injured party and in affect give it to the
government who itself must bear some responsibility for the claimants
injuries or deaths because it did not provide proper airline security
laws as confirmed by the hasty passage of the airline safety act.
Reducing awards for life insurance that a decendant purchased to
protect their family and estate under the assumption of normal
death not soley because of the terrorist attack of September 11th
should not be considered a collateral source under the strict wording
of the statute. I believe that offsets for workman's compensation
death benefits and other death benefits paid specifically as a result
of the attack are reasonable offers.
4. The statute specifically states that pension funds are to be considered
collateral source. The IRS specifically defines a pension plan as a defined
benefit planthat typically pays a fixed income to a person( see attatched page
with definition from IRS publication 575). The company and not the
individual fund these funds. Many people have 401k plans which the
IRS defines as a defined contribution plan. These plans are provided
by the employer but ate significantly if not entirely funded by the
individual. Therefore, I submit that accordingly 401k funds as well as IRA's
and individual annuitites are not to be considered collateral sources
in accordance with the government's pwm definition of these funds.
5. I strongly support the USDOJ's belief that claims should be proced
without economic experts. However as the rules currently are set up
this is not possible. Therefore to accomplish this task the USDOJ
must establish a set of simple formulas for determining economic compensation
and spell out the exact offsets a claim would have held against it
that can be open for interpretation. I feel strongly that this be done
so a claimant is not ask to waive their right to sue without knowing the
exact amount compensation they could expect as a minimum.
6. New York State Attorney General Wlliot Spitzer said, it is wrong to demand that families
waive their right to sue before they are told what they will ultimately
reciever from their claim. I agree with teh Attorney General, which
is why I propose that the plan allow claimants to file their claims
and request an award determination. If the claimant would like
to accept the awared as sdetermined they must waive their righ to sue.
If the claimant disagrees with the award determination, it can be applealed
as stated in the proposed rules. However, in order to appeal the award
determination they must waive their right to sue since they have a
guaranteed minimum award. I believe my proposal is fair and equitable
and meets the requirements of the statute. I also feel it would cause no
additional burden or delays to the plan. It simply changes the point in
the process at which the waiving of the rights to sue is done.
I strongly believe that the USDOJ needs modify the current rules.
I believe my suggestions in this letter are fair to claimants, provide
a strong incentive to avoid litigation, encourage the use of Victims
compensation Fund and conform to all the rules set out in the statute.
I would welcome an opportunity to discuss my comments with Mr. Feinberg.
If Mr. Feingberg feels this would be constructive, please contact me at
the number below.
Sincerely
Individual Comment
Kings Park, NY
GENERAL INFORMATION
Some of the terms used in this publication are defined in the following
paragraphs.
A pension is generally a serious of definitaly determinable payments
made to you after you retire from work. Pension payments are made regularly
and ar ebased on certain factors, such as years of service with your employer
or your prior compensation. --> A 401k is not a pension