dojN002631.xml

dojN002631.xml

born-digital

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2002-01-13

January 13, 2002

Mr. Kenneth Feinberg
Special Master of the Sept 11 Victim Compensation Fund
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Ave, NW
Washington, DC 20530-0001

Re: Comments on the Interim Rule of the September 11th Victim
Compensation Fund of 2001

Dear Mr. Feinberg:

I am writing to ask for 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, which
bear ultimate responsibility for the tragedy because of lax security procedures. 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's 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 economic 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 is rationalized as being roughly equivalent to the amounts
received by public safety officers who were killed while on duty, or members of the military who
are killed in the line of duty while serving our nation. With all due respect to such public safety
officers and miliary personnel, they choose to go into harm's way and their loss is not the result
of corporate negligence. On the other hand, the September 11 victims are victims of negligent
airline security. 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.



Sincerely,


Individual Comment
Alexandria, VA

2002-01-13