dojN002660.xml

dojN002660.xml

born-digital

email

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2002-01-18

January 18,2002

By FAX and Regular Mail

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

Dear Mr. Zwick:

As you know, the Interim Final Rule implementing Public Law 107-42 (the September
11th Victim Compensation Fund of 2001) has been published for comment at the U.S.
Department of Justice website. By this letter, I submit to you my comments on certain aspects of
the Interim Final Rule.

My concern focuses on a potentially serious ancillary result which may adversely affect a
number of claimants who file claims against the Fund. Specifically, the wording of the Interim
Final Rules appears to be at odds with the wording of the Eligibility Form (DOJ Form SM-001).
In the Interim Final Rule, "Subpart F - Limitations" and Section 104.61 of such Subpart state
that"...upon the submission of a claim under the Fund, the claimant waives the rightto file a civil
action (or to be a party to an action) in any terrorist-related aircraft crashes of September 11,
2001..." [emphasis supplied] However, item 2 of "Section IV - Advance Benefits' of the
Eligibility Form, in which the claimant acknowledges waiving the right to file a civil action, also
states "Please note that this Waiver of Rights could apply to therights of individuals other than
the claimant." [emphasis supplied]

Thus, unlike the Eligibility Form, the Interim Final Rule makes no reference to potential
rights of individuals other than the claimant, or to the waiver of such rights. I believe that this
difference of language is critical, and must be harmonized either by modifying the Eligibility
Form, expanding the language of the Interim Rule, or making both of these changes. Permit me
to illustrate my concern by using a hypothetical example.

Suppose a World Trade Center decedent is survived by a wife, no children, and the
decedent's parents. Further suppose that the wife has been judicially appointed as the sole legal
representative of the decedent's estate. As I understand New York law, the provisions of EPTL
5-4.4(a) would entitle the parents as deemed distributees to share in damages obtained in a
wrongful death action brought by the wife as fiduciary. This result would occur even though, for
purposes of intestacy, the widow would be the sole distributee. Therefore, once the wife makes a
claim against the Fund, she presumably forecloses any possibility that the parents would have
had to either commence a wrongful death action or to share in damages obtained in such action.
The Eligibility Form is seemingly innocuous in its statement that the waiver of rights
could apply to the rights of individuals other than the claimant. I submit that if the claimant wife
is a lay person and has no legal counsel (or even for that matter if she has such counsel), the wife
and/or her counsel could readily gloss over any implications of the Eligibility Form's statement
upon reading it. Would it not be preferable to give the wife and/or her counsel actual notice in
the Eligibility Form that those "individuals other than the claimant" could include the decedent's
parent or parents? Otherwise, unless she received a written release from the decedent's parent(s),
the claimant wife could end up defending a subsequent lawsuit brought against her by such
parent or parents, asserting that she had no legal authority to waive the rights of the parent(s) or
to preclude them from bringing a wrongful death action on their own.
Of course, this hypothetical example assumes that the claimant wife can legally waive the
rights of any third person who is not a signatory to the Eligibility Form. I suspect that this issue
will ultimately be determined by a Federal court. The wife is arguably not the agent (actual or
under apparent authority) of the decedent's parent(s). It is true that the wife as sole fiduciary in
my hypothetical would have the exclusive legal ability to bring a wrongful death action, for the
benefit of the decedent's distributees (see EPTL 5-4.4), and may thereby be able to derivatively
bind the parents to a waiver by claiming under the Fund. However, it is theoretically possible for
the parents rather than the wife to become legal representatives of the estate and thus bring a
wrongful death action on their own.

Based upon the foregoing, I propose the following:

1. Section 104.61 of "Subpart F - Limitations" of the Interim Final Rule should be
modified to add this language in bold type at the end: "This waiver of rights could apply to
the rights of individuals other than the claimant, such as a parent or parents of the
deceased, who may be able to share in wrongful death damages pursuant to applicable
state law. Claimants should consult with counsel prior to submitting a claim under the
Fund."

2. Item 2 of "Section IV - Advance Benefits" of the Eligibility Form should be modified
to expand the existing language to read as follows, all in bold type:"Please not that this
Waiver of Rights could apply to the rights of individuals other than the claimant, such as a
parent or parents of the deceased, who may be able to share in wrongful death damages
pursuant to applicable state law. Claimants should consult with counsel prior to
submitting a claim under the Fund."

Thank you for providing the opportunity to make this submission.

Respectfully yours, Individual Comment

2002-01-18