N002400
January 17, 2002
Kenneth L. Zwick, Director
Office of Management Programs
Civil Division
U.S. Department of Justice Room 3140
950 Pennsylvania Avenue
Washington, DC 20530
Re: September 11th Victim Compensation Fund of 2001, Interim Final Rule with
Request for Comments
Dear Sir:
My wife, daughter and I had the honor of having our son with us for
almost thirty-four years. His wife shared that honor for the last six years.
Now we all have the equal horror of grieving for a wonderful and respectful
young man who was killed through no fault of his own, but because he went to
work the morning of September 11 on the floor of the North Building of the
World Trade Center.
What we do not have is equal recognition under the law for the loss that we all
equally have. My wife, gave birth to him. We both raised him by
providing all the guidance, friendship, substance and mostly love that a child
could possibly need and want. After he married, we continued to speak to him
several times a week and see both our son and daughter-in-law frequently. His
older sister, , was one of his best friends . In recent years they lived over one
hundred miles apart, but were always together in their hearts. They spoke to
each other a few times a week.
We thank you for the opportunity to comment today on the Interim Final Rule.
Our comments are as follows:
1. The Regulations and Guidance Should Clearly State that Parents Whose
Children Were killed on September 11th Are Presumed to be Eligible for
Distribution of all Compensation Awards.
Our grief for our son is as great as that of anyone's and what we ask is that this
fact be recognized under the law. Our lives have turned into a living hell and we
must receive equal compensation for this insurmountable loss and unending
pain and suffering that we are struggling to endure.
New York State law recognizes that parents are to share in the distribution of any
damages awarded in a wrongful death action. Under EPTL Section 5-4.4 , parents
of children without children of their own are specifically named distributees,
even of they are not recognized by the state as beneficiaries of the estate. The
final regulations and guidance to be issued under the September 11th Victim
Compensation Fund 2001 should clearly state the same. To do otherwise will
create undo confusion and pain on the part of families who have already lost far
too much.
If the goal of the September 11th Fund is to prevent families from feeling that
their only option is to sue, The Fund should clearly provide that other options
exist and that compensation to all family members, not just spouses will result.
Ambiguity and vagueness is not helpful in this case, but is instead
counterproductive for both the families and the government. To neglect to
provide the clarity requested here will result in excessive pain and suffering
clearly not envisioned when Congress passed Title IV (Victim Compensation) of
the Air Transportation Safety and System Stabilization Act (the "Act").
Finally, the regulations wisely anticipate that disputes among family members
may ensue. As Special Master to the Fund, you have a unique opportunity to
minimize the number of such disputes by providing as much clarity as possible
up front so there are as few disputes as possible within the families over the
law's intent. This is an incredibly difficult time for the thousand of families
effected by the horrific events of September 11th. We urge you not to add to this
difficulty by creating conflicting opinions over the intent of your own words and
actions.
2 To Deduct Life Insurance and Pension Payments From the Compensation
Awards is Counter To Public Policy and is Grossly Unfair to Families
Whose Loved Ones Took Responsible Steps to Plan For Their Families'
Futures.
It is not equitable that insurance and pensions be deducted from the total
compensation. Simply because some of the victims had the foresight to provide
for their families should not be held against them. This is why in most civil
litigation life insurance is not deducted from damage awards. Nor should the
fact that some had pensions be held against them. If you want to deduct the
pensions that they earned, then the total of the pensions should be included in
the gross compensation as part of their earning power over their expected term
of employment. The liability for wrongful death should be measured by total
potential earnings and pain and suffering to both the victims and their families.
Should the regulations not be able to be modified due to the language of the Act
itself requiring that compensation must be reduced by collateral sources (Section
405 (b)(6), perhaps an alternative would be to reduce the compensation by a
percentage of the total amount of the collateral sources. Nothing in the Act
specifies that the reduction must be dollar for dollar.
3 The Claim Form Should Include a Provision Requiring Disclosure of, and
to, all Living Immediate Family Members In Order to Ensure a Knowing
and Effective Waiver of Suit is made.
We are all at a significant disadvantage in that no claim form was provided in the
Interim Final Rule to review. Thus, in the absence of such a draft form, one can
only speculate what will be asked of the personal representative when making a
claim. At a minimum, the form should require the personal representative to
disclose the names, addresses, and phone numbers of all living immediate family
members. For the purposes of this regulation, immediate family members
should be defined to include spouses, children, parents and siblings. In addition,
the regulations should also require that effective notice of the filing of a claim
(within a reasonable period of time) be given to all such relatives giving them the
opportunity to opt in or out. To do otherwise would unfairly affect other
relative's right to sue by risking an unknowing waiver of the right to sue. No
one should be bound by the actions of others of which they were not made
aware.
4 A clear definition of "dependent" as used in the section "presumed non-
economic loss" should be given.
At a recent meeting attended by Special Master Feinberg the definition of
dependent was given to be not limited to that used by the Internal Revenue
Service, but intended to include the relatives to who support was or was
intended to be given by the victims. In our case this should include the support
given to my wife when she was ill with cancer and the support given to me when
I had by-pass surgery. In both cases our son was there with us constantly, being
of both physical and emotional help to us. Our daughter recently told us of a
conversation that she had with our son, that if we would be in need of long-term
care they would both contribute to it. These are but a few cases of what should
be included in the definition of dependent.
The people of this great country have put in your hands the means that will help
us begin to shape our future. We urge you to write the regulations so that this
may come about.
We appreciate your work on this project and hope you will take our thoughts
into consideration. If we can be of any further assistance, or provide any
additional information, please feel free to call us at the following phone number
.
Thank you,
Individual Comment
Monroe Township, NJ