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2002-01-21

Kenneth L. Zeick, Director
Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue
Washington D.C. 20530

January 21, 2002

Re: September 11th Victim Compensation Fund of 2001, Interim Final Rule with Request for
Comments


Dear Director Zwick:

I commend the United States Congress and the United States Department of Justice for striving
to develop a fair alternative to litigation for families affected by the horrific events of September
11th. Having lost my brother on September 11th in the North Building of the World Trade
Center, I have a personal interest in ensuring that my family's rights are protected. My brother,
&nbsp&nbsp&nbsp&nbsp , was survived by his wife, my parents and myself. Each of us is devastated by
his murder. We are struggling to cope with the loss of someone so absolutely special to all of
us.


Overview of Comments

As currently drafted, I am concerned that the September 11th Victim Compensation Fund is
flawed for the following reasons:

1. The Interim Final Rule (hereinafter"Rule") lacks clarity regarding which family members
are included in the allocation scheme. The Rule's reliance on state law confuses the issue,
rather than clarifies it, as state law conflicts on this issue. I urge that the Rule be changed to
state clearly that parents, children and spouses are all presumed to be eligible for
distribution of compensation awards.
2. The Rule's preamble specifically states the need for claimants to be provided enough
information so that they may an informed decision whether to enter the program, and
thus whether to waive their right to file a civil action. However, to ensure an informed
decision can be made by families, the final regulations must include a "Table of Presumed
Distributions," similar to the "Presumed Economic and Non-Economic Loss Tables"
provided as part of the Interim Final Rule.
3. The Rule runs counter to public policy by deducting life insurance from the ultimate award.
Families of the victims should not be penalized because of the sensible financial planning of
their lost loved ones. In the absence of a change, the Department of Justice should, at the
very least, ensure that the offset be only applied to the portion of the allocation that is
provided to the specific beneficiaries of the collateral sources (in contrast to applying the
offset equally to all beneficiaries of the Victims Compensation Fund).
4. The Rule does not provide for disclosure and notice to all living, immediate family
members, thus creating the real potential of an unknowing waiver of suit.

My specific comments are provided below.


Comments

1. The Regulations and Guidance Should Clearly State that Parents Whose Children Were
Killed on September 11th, in addition to the Spouses and Children of Such Victims, Are
Presumed to be Eligible for Distribution of all Compensation Awards

The Interim Final Rule does not state clearly whether the intention of the Fund is to provide
compensation to the parents whose children were killed on September 11th. My brother was 33
years of age when he was killed. He is survived by his wife of six years, my parents, and myself.
We are a very close family. My parents have been devastated by loss of their only son who
they nurtured, cared for and loved for 33 years. I still find it hard to believe that my brother is
no longer alive. I am suddenly an only child with parents to support. Although on September
11th, my sister-in-law was the only family member financially dependent on my brother, my
brother and I agreed years earlier that if my parents ever needed financial support as they aged,
he and I would gladly share that cost. Thus, a future economic loss, which is extremely difficult
to quantify, was created on September 11th but ignored by the Special Master when drafting the
rule. Moreover, the pain suffered by my parents, a non-economic loss, has been extraordinary.
Yet the Rule does not consider their pain and suffering and actually intensifies their sense of
loss of presumed them minimizing their loss. I urge you to specifically add parents to the
list of presumed beneficiaries, especially in those cases where the victim was married but had
no children.

For the purposes of the distribution of any compensation to be awarded, the interim final Rule
states:

"The Personal Representative shall distribute the award in a manner consistent
with the law of the decedent's domicile or any applicable rulings made by a
court of competent jurisdiction." Section 104.52

But which provision within a given state's law applies? Is it the provision of New York estate
law that specifies the distribution of assets when a person dies intestate? Or is it the provision
of New York estate law that specifies the distribution of awards in a wrongful death action?
The answer to these questions will have a profound impact on many families, as results are
dramatically different in these two scenarios. In my family, for instance, under New York state
intestacy rules when a married person dies without children, but with living parents, the spouse
inherits 100% of the estate. However, under the same scenario, but applying the section of New
York State law dealing with wrongful death actions (EPTL Section 5-4.4), parents of children
without children of their own are specifically named distributees, even if they are not
recognized by the state as beneficiaries of the estate. Thus, under one provision of New York
law my parents will benefit from the Fund, but under another provision, they will not.

In a meeting with the Bar Association of the City of New York on January 17th, Special Master
Kenneth Feinberg stated that there was no need to create new law where settled law already
existed. However, no state that I am aware of contains a provision in their estate law that
specifically deals with the issue at hand. Before January 17th, I believed that the wrongful death
provisions of New York State law were the closest parallel and thus would apply here. I still so
believe this is true. However, on January 17th, Special Master Feinberg seemed to indicate
otherwise in response to a question. In fact, he stated that perhaps clarity was not a good thing
in this area since state laws varied considerably on the issue of distributions.

How can a family member make a knowledgeable and educated decision as to whether to
apply to the fund, and thus waive their right to sue, if they do not know if they will be a
beneficiary of the Fund? Such a basic issue must be resolved before any individual can decide
whether to waive their right to sue. The final regulations and guidance to be issued under the
September 11th Victim Compensation Fund of 2001 should clearly state who will benefit. To do
otherwise will create undo confusion and pain for families who have already suffered for too
much. To neglect to provide the clarity requested here will result in needless pain and suffering
clearly not envisioned when Congress passed Title IV (Victim Compensation) of the Air
Transportation Safety and System Stabilization Act (the "Act").

2. A "Table of Presumed Distributions," similar to the "Presumed Economic and Non-
Economic Loss Tables" Provided as Part of the Interim Final Rule, Should Be Included in
the Final Regulations to Ensure That Families Are Able to Make Informed Decisions
Regarding Whether to Enter the Program.

The preamble to the Interim Final Rule specifically states-

"[T]hat claimants be able to enter the program - or choose not to enter the
program - with an understanding of how their claims will be treated. This is
especially important because... a claimant waives the right to file a civil action
for damages sustained as a result of the September 11 attacks. For claimants to
make an informed decision regarding this waiver, they should have some
understanding of how their award will be calculated and how much they would
receive from the Fund should they decide to file a claim." (italics added).
Thus, one of the purposes of the regulations is to provide enough information to families so that
they can make a knowledgeable decision about whether to file a claim with the Fund. This is
the reason why the Presumed Economic and Non-Economic Loss Tables were provided.
However, without knowing what percentage of the award will be awarded to specific family
members, a knowledgeable decision can not be made. For this reason, a "Presumed
Distribution Table," such as the one provided below, should be incorporated into the final
regulations.



Sample Presumed Distribution Table

Surviving Immediate Spouse Parents Children
Living Family Members

Spouse 100% - -
Spouse & Parents 50% 50% -
Spouse, Parents, & 40% 40% 20%
children

3. To Deduct Life Insurance and Pension Payment 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.

To deduct life insurance from the compensation awards is counter to public policy and sends an
awful message to families planning for their futures. 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.

Should it not be possible to modify the regulations 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.

Lastly, with regard to collateral sources, the regulations should specify that in the event that
there are multiple beneficiaries for the compensation award (as advocated herein), the collateral
sources shall only offset the portion of the award allocated to those individuals that received
such collateral sources.1 To do otherwise, would unfairly reduce the compensation of those
family members who did not benefit from the collateral sources in the first place.

4. The Claim Form Should Include a Provision Requiring Disclosure of, and to, all Living
Immediate Family Members In Order to Ensure that 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 providing 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.


Conclusion

Thank you for the opportunity to comment on this Interim Final Rule. I would be happy to
provide any further comments or clarification to you office should it be helpful. I can be
reached at .

Sincerely,

Individual Comment
Washington, D.C.

cc: Attorney General John Ashcroft
Senator Hillary Rodham Clinton
Senator Charles Schumer

2002-01-21