dojA000243.xml

dojA000243.xml

born-digital

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2001-11-26

Comments in Response to Notice to Inquiry and Advance Notice of Rulemaking By the US Attorney General on September 11th Victim Assistance Fund Regulations

Date: 11/26/01

From: Aviation Consumer Action Project (ACAP)

Organizational description: ACAP is a nonprofit public organization founded in 1971 with
several thousand contributor/members to act as a voice and ear for the pubic and air travelers on
major aviation issues, particularly on issues of safety, security and consumer rights. A number of
its members are air disaster family members. ACAP receives no funding from the airline
industry or the government. ACAP has published and distributed consumer guides for air
travelers, air crash victims and the 9/11 victims.

General Comments: The rules should clarify the law and make it as simple as possible for

claimants to obtain prompt, just recovery. The amount of recovery should be largely predictable

within a range so victims can make an informed election of remedy choice between the no fault

Fund and traditional civil lawsuits in negligence.


Topics #1 and #2


The claim form should be comprehensive and detailed but use plain language as well as legal

terms of art whenever possible. As the law in effect provides for claimant to receive amounts of

various forms of compensatory damages, directions should provide detailed explanation of the

various forms of losses, especially non-economic and business related losses (e.g. loss of

consortium, pain and suffering loss of society, loss of future business opportunities).

The sources of such explanation would include the legal encyclopedia Am Jur and Pattern Jury

instructions from jurisdiction which provide for such benefits. Likewise, collateral sources should

include a specific types included and excluded, with a definition of the phrase "amounts to be

received or entitled to".


Filing should normally be when the claim form is received, not when it is deemed complete by the

Special Master. Rather a conference should be held or notice sent to the claimant as to any

omissions or deficiencies. However, if the claimant contains insufficient information or

documentation to determine whether the victim is an eligible claimant under the Fund, it should

not be considered as filed if it is rejected for lack of information or documentation to determine

eligibility.


Crime victim compensation programs often provide for a two step procedure:


(a) an initial Claim Form that asks only for basic information to determine

eligibility for an award only, and

(b) a very detailed Claimant Affidavit which is sent after a claim form has been

accepted for filing.


Topic #3


It is possible for hearings to be held on thousands of claim within 120 days and for a final decision

to be rendered. Assuming 6,000 claims and a minimum for 10 hours for review hearing and

decisions, this is 60,000 person hours in 86 business days, (120 calendar days) requiring about

100 to 150 hearing officers/claims examiners full time or probably triple that number if part time.

Claimants should be allowed to waive or extend the 120 days rule within reason, but hearing

officers should not be given general authority to do so or the 120 day time frame will quickly become an empty government promise.


Hearing officers are necessary and should be experienced attorney, judges, or former or retired judges with experience in wrongful death and personal injury cases. Even if no hearing is held and decision is made on papers submitted, the person deciding the claim should have the same or similar qualifications.


Proceedings should be recorded, held in a convenient location for the claimant if possible,

enforcement of evidentiary requests should be provided for by DOJ, and video conferences or

hearings should be allowed.


No attorneys for DOJ should appear or participate in the proceedings, lest the no fault process

quickly become adversarial.


Topic #4


Economic experts should be allowed but a grid or standard tables should also be allowed in lieu of such experts.


Professional fees should be non-contingency payable at the end of the case out of the award,

assuming an award is made based on a presumptive or fixed hourly rate of $180 with an overall

cap of 15%. Normally fees should be 3%-10% of the total award. This will avoid the usual

complications. Another alternative would be to use the Social Security systems attorney fee

system with a cap of 15%.


"Physical harm" should be liberally defined as physical injury and should include mental injury if

it requires professional treatment and/or medication for an extended period. The "serious injury" of no fault insurance statutes is not appropriate as the intent here is to follow and mimic the most

generous common law compensatory damage remedies, not to carve out an exception to the

common law for a particular class of less serious injuries.


"Present at" should mean within the area of destruction (for the WTC generally south of Canal

Street in Manhattan, or within the boundaries of the Pentagon property).


All survivors should be notified including spouse, former spouses, children, parents, siblings,

grandparents, grandchildren, or other next of kin or immediate family members.


The Special Master should designate the personal representative unless a surrogate or probate

court or other court of competent jurisdiction has already done so. In cases of dispute as who

should be the personal representative, the claim should proceed with the neutral third person

appointed by the Special Master as temporary personal representative, unless all disputants agree

that the claim should not proceed until the dispute is resolved by the courts.


The distribution of awards among family members is normally the province of the probate and

surrogate courts in wrongful death settlements. Here award decision as similar to special verdict

damage awards should specify the amounts being awarded for each type of compensation claimed

and if appropriate to which survivor. This will earmark and should avoid any disputes in the state

courts as to distribution, especially for non-economic compensation such as loss of society or

grief, and would also expedite any review.


The rules should make it clear that the forms of compensation explicitly mentioned in the law are

available to all claimants subject to proof of the loss, and that others not explicitly mentioned are

available if the victim's home state or the home state of the survivors would allow them.

Otherwise the restrictive New York wrongful death law which generally does not allow for loss of

society or grief or other non-pecuniary damages except for pain and suffering of the decedent,

could result in dramatically different awards in non-dependency cases depending on the residency of the victim and survivors and other esoteric conflict of law rules.


Topic #6


Presumptive award schedules should be published as otherwise there is no rationale way for

claimants to determine whether they should elect the Fund or a traditional lawsuit, at least until a

range of awards has been decided in actual claims. Many victims would probably forgo a hearing

and submit claims on papers if the presumptive awards appeared acceptable to them. Some

victims will want a hearing and others will want to avoid a hearing. The claimants should have the choice. A presumptive award schedule is therefore appropriate.


Under the NY Crime Victims Board scheme a Board Member makes an initial decision on a claim

which becomes final after a short period unless the claimant or another Board Member disagrees,

in which case a hearing is held. Here a similar procedure could be followed: No hearing unless

requested by the claimant or hearing officer or the Special Master.


Economic loss data should be published, and economic experts should be required to meet the

usual expert witness criteria. Where future lost earnings are uncertain or vary variable the

standard should be the average earnings for a worker in that field and location over the victims

expected life, and based on decision by the Special Master as to where the victim would fall based

on the best available evidence presented by the claimant on the victim's future earning prospects.


Non-economic losses should be presumptive for various classes of victims and survivors, and also

include a range.


Collateral Sources Charitable cash and in kind assistance and scholarships are gifts (under

income tax and other law), not collateral sources and would not be considered such under the

common law of most jurisdictions. Where the Fund statute is in derogation of the common law

on damages, it should be construed in favor of the claimant. In general collateral sources are only those things that the victim or survivors had a legal right to and actually received or are certain to

receive in the future. It should also exclude sources that are means tested.


As to insurance claims proceeds the cost of the insurance premiums over the life of the policy or its

predecessors should be deducted from the proceeds received and any future added insurance

premium costs (e.g. health insurance) considered an economic loss.


Fraud Warnings for claimants on fraud are appropriate, but the incidents of fraud where the

victim was killed or physically injured in crime situations is quite rare.


Comment By:
Aviation Consumer Action Project
Washington, DC

2001-11-26