N002360
Tuesday, January 22, 2002 8:27 PM
Victim's Compensation
Attachment 1:
January 16, 2002
Re: Comments on the Interim Rule of the September 11th Victim
Compensation Fund of 2001
Dear Sir,
Don't penalize those surviving family members whose loved ones did the
right thing by providing for their families. Please make sure government
financial assistance is given to all the families who lost a loved one on
September 11, 2001. We need your help to correct two inequities in the
Department of Justice's Interim Final Rule for the September 11th Victim
Compensation Fund of 2001 that will result in many families receiving no
compensation from the fund. This is because (1) the projected economic and
non-economic loss figures are unrealistically low; and (2) the Fund reduces
any award by the amount of money a victim family receives from a "collateral
source."
When Congress passed the Air Transportation Safety and System
Stabilization Act on September 22, 2001, it severely restricted September 11
victims' right to sue the airlines. In exchange for denying victims the right
to sue, Congress provided the September 11th Victim Compensation Fund of
2001. The Fund is supposed to compensate the victims' families for the types
of losses that would have been recoverable in a lawsuit, but without the
burden and delay of litigation.
The Interim Rule/Regulation also describes the intention of the law:
"The Fund is designed to provide a no-fault alternative to tort litigation
for individuals who were physically injured or killed as a result of the
aircraft hijackings and crashes on September 11, 2001" {Interim
Rule/Regulation, Summary Paragraph A.1.}.
"The attached regulations have two objectives: (1) To provide fair,
predictable and consistent compensation to the victims of September 11 and
their families throughout the life of the program; and (2) to do so in an
expedited, efficient manner without unnecessary bureaucracy and needless
demands on the victims." {Interim Rule/Regulation, Supplementary
Information.}.
The Interim Final Rule fails to meet the intent of Congress, however,
because many victims' families will net nothing after collateral source funds
are subtracted from the already undervalued economic and non-economic loss
projections.
The Interim Final Rule understates economic loss by underestimating the
lifetime earning potential of victims at all income levels. Noted economists
at the National Association of Forensic Economists showed that the Interim
Final Rule uses outdated statistics and inappropriate methods to arrive at
low estimates of our loved one's future earnings. An analysis done by one of
these economists showed that the actual earnings growth for firefighters is
27% higher than the DOJ estimate, the actual earnings growth of all college
educated workers is 30% higher than DOJ indicates, and actual earnings growth
for financial professionals is more than 100% higher than the DOJ estimate.
The Interim Final Rule also falls short of Congress's goals for
non-economic loss. The figure for presumed non-economic loss compensation of
$250,000 plus an additional $50,000 for the spouse and each dependent.
Perhaps more realistic guidance as to the value of non-economic loss can be
found in other air crash disaster awards. For example, non-economic losses
recovered in other air crash and terrorism cases commonly result in awards of
between $2 million and $5 million. A more reasonable projection of
non-economic loss is probably somewhere between the current proposal and the
historical litigation result.
The Interim Final Rule reduces any compensation awards by the amount of
any funds received from collateral sources, including life insurance. The
Interim Final Rule does this because Congress included such a provision in
the Air Transportation Safety and System Stabilization Act. That does not
make it fair; that does not make it right. In many states, the law on "the
collateral source rule" has been well settled for over one hundred years.
Under that rule, damages recoverable for personal injury or death, caused by
the negligence of another, cannot be reduced because of compensation received
by proceeds of an insurance policy. This is because the wrongdoer owes full
compensation for the injuries inflicted by them and any payment by a
collateral source in no way relieves the wrongdoer of their obligation. In
this instance, the airlines and others at fault owe full compensation for the
injuries resulting from their negligence. Any payment by a collateral source
in no way relieves the airlines and others at fault of their obligation.
This collateral source rule, which has been a fundamental part of tort victim
compensation for over a hundred years, needs to be incorporated into the
September 11 Victim Compensation Fund.
The Interim Final Rule needs to be adjusted to provide fair, balanced and
acceptable economic and non-economic loss projections. The economic loss
charts need to be increased and expanded depending upon the deceased's job
field. The non-economic loss amounts also need to be increased into a range
that accounts for the tragic way in which these innocent victims died and the
shattered lives they left behind. Collateral source recoveries need to be
excluded from consideration by the Fund. Without these changes, the intent
of Congress will not be fulfilled because there will be no reason for many of
the September 11 victim families to participate in the Fund. Without these
changes, it will be better for many victim families to take a chance at
litigation rather than sign on to a Fund through which they will receive
nothing but a waiver of their right to sue.
Please rectify these inequities. Give the victim families a reason to
participate in this Fund rather than litigate. Change the Interim Final Rule
to provide economic and non-economic amounts at fair, balanced and acceptable
levels; do not offset Fund awards by collateral source recoveries; establish
a fair appeal process. Finally, please include the specific calculation
formulas, statistics and assumptions within the rule or the explanatory
materials.
Individual Comment
Stafford, VA