N002473
January 9, 2002
VIA FACSMILE (301-519-5956)
Mr. Kenneth L. Zwick, Director
Office of Management Programs, Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue NW
Washington, DC 20530
Re: September 11 Victim Compensation Fund of 2001 - Interim Rules
Our File No. 580A
Dear Mr. Zwick:
We are attorneys for the widow/Personal Representation of a deceased victim of
the
terrorist attack of September 11, 2001 at the World Trade Center. We write to comment
on the
Interim Rules adopted effective December 21, 2001.
There are several aspects of the Interim Rules which we believe do not carry out
the letter
and intent of the Act (Title IV of Public Law 107-42), but we wish to focus on one
particular
aspect of the Interim Rules which we believe to be clearly contrary to the Act and unfair
to our
client and others similarly situated.
Our client's husband who was killed at the World trade Center by the highjacked
airplane was a relatively young man, age 42 and earning $1.1 million a year as a
stockbroker. In
addition to his wife, he left four minor children ranging in age from 11 months to 14
years.
The Interim Rules and the Special Master's comments indicate that, absent
undefined
"extraordinary circumstances" the economic loss award will be limited by capping annual
incomes up to but not beyond the 98th percentile of individual income in the United
States for
the year 2000 ( 104.43). The Table of Presumed Economic and Noneconomic Loss
("Table")
indicates that the 98th percentile is $231,000 for the year 2000 and computes the highest
economic loss based on an income of $225,000.
There is no basis in the Act for limiting the economic loss awards by capping the
annual
compensation level at $225,000. The Act contains no limitation on the amount of annual
income
to be taken into account in determining the "pecuniary loss." In defining "economic loss,"
§402(5) of the Act refers to "pecuniary loss...including the loss of earning or other benefits
related to employment...to the extent recovery for such loss is allowed under applicable
State
law."
The law of the State of New York, for instance, contains no limitation on earnings
in
determining the "pecuniary injuries" to the distributees of a wrongful death victim (EPTL
§5-
4.3).
Particularly in light of the offset for collateral source payments, such as life
insurance
(which is not an offset in a New York wrongful death action), it is unjust and contrary to
the Act
to limit the economic loss award by capping annual earnings at the $225,000 level.
Surely,
Congress did not intend to penalize and discriminate against a deceased victim's
dependents
because their husband and father was successful in his gainful employment.
We request that §104.43 of the Interim Rules and related references be modified to
remove the limitation on annual incomes being considered up to but not beyond the 98th
percentile and that the Table be modified accordingly.
Very truly yours,
Comment by:
Richenthal, Abrams & Moss
New York, NY