N002399
January 8, 2002
To: Kenneth L. Zwick
Director, Office of Management Programs
Civil Division, USDOJ
Re: September 11th Victims Compensation Fund 2001
Dear Sir:
I have reviewed the USDOJ's interim final rules for the September 11th Victims
Compensation
Fund of 2001 and have the following comments:
1. The intent of the fund is not only to minimize 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 government's 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 which a person did not even
intentionally hurt or kill someone receive far more pain and suffering. How can this be the case?
The special master said that he can not and will not play Solomon, yet in setting 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, sine the
collateral offsets established in the Air Transportation Safety Act are monies that are designed
solely to support families economically, not to ease their pain and suffering.
2. The USDOJ needs to provide exact details of what constitutes collateral sources. As the rules
currently stand there is so 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 receive 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 they mislead them and
duped
them into an unfair settlement. The plan as it is currently set up has already led to public outcries
and
a minimal number of people have filed for claims under the plan. This alone should make it
clear to the
USDOJ that the plan they have 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 statute 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 attacks are not part of the collateral offset. The USDOJ policy takes funds from the
injured party and in effect 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 passage of the airline safety act. Reducing awards for life insurance that a
decedent purchased to
protect their family and estate under the assumption of normal death, not solely 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 offsets.
4. The statute specifically states that pension funds are to be considered collateral sources. The
IRS
specifically defines a pension plan as a defined benefit plan that typically pays a fixed income to
a
person(see attached page with definition from IRS publication 575). The company and not the
individual fund these funds. Many people have 401 K plans which the IRS defines as a defined
contribution plan. These plans are provided by the employer but are significantly if not entirely
funded
by the individual. Therefore, I submit that accordingly 401 K funds as well as IRA's and
individual
annuities are not to be considered collateral sources in accordance with the government's own
definition of these funds.
5. I strongly support the USDOJ's belief that claims should proceed 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 not 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
of
compensation they could expect as a minimum.
6. New York State Attorney General Elliot Spitzer said, it is wrong to demand that families
waive their
right to sue before they are told what they will ultimately receive from their claim. I agree with
the
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 award as determined, they must
waive their right to sue. If the claimant disagrees with the award determination, it can be
appealed 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 fo the statue. 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 right to
sue is
done.
I strongly believe that the USDOJ needs modify the current rules. I believe my suggestion
in this
letter are fair to claimants, provide a strong incentive to avoid litigation, encourage the use of the
Victims
Compensation Fund and conform to all the rules set out in the statue. I would welcome an
opportunity to
discuss my comments with Mr. Feinberg. If Mr. Feinberg feels this would be constructive,
please contact
me at the number below.
Sincerely,
Individual Comment
Kings Park, NY