dojP000135.xml
Title
dojP000135.xml
Source
born-digital
Media Type
email
Date Entered
2002-01-25
September 11 Email: Body
Friday, January 25, 2002 4:36 PM
Attn. Kenneth Feinberg
January 25,2002
Page 1
MEMORANDUM January 23, 2002
TO: Kenneth Feinberg, Esq.
Special Master
FROM:
RE: Comments on the Regulations governing the September 11th Victims' Compensation Fund
I am an associate with the New York office of . As part of the legal mobilization organized by the Association of the Bar of the City of New York ("ABCNY"), I have been acting as a Facilitator to an unmarried domestic partner of an individual killed in the World Trade Center disaster.
I attended the meeting at ABCNY on January 17th, 2002, at which you and the Deputy Special Master spoke. Among the issues addressed during the question and answer part of the evening was the entitlement of unmarried domestic partners to compensation through the Victims' Compensation Fund (the "Fund"). I was relieved to learn that unmarried domestic partners will, in certain cases, be entitled to compensation (although the application must be made by the deceased's Personal Representative who, in cases of intestacy, will generally be a family member and not the unmarried domestic partner).
My understanding from the January 17th meeting is that unmarried domestic partners who received substantial financial support (as distinguished from mere intermingling of finances) are eligible for compensation. However, this position is not readily apparent from the regulations governing the Fund issued by the Department of Justice (the "Regulations"). Section 104.43 of the Regulations provides, in relevant part: "In reaching presumed determinations for economic loss for Personal Representatives bringing claims on behalf of decedents, the Special Master shall consider sums corresponding to ... the number of dependents who survive the decedent; whether the decedent is survived by a spouse; and the amount and nature of the decedent's income for recent years". Similarly, Section 104.44 provides, in relevant part: "The presumed noneconomic losses for decedents shall be $250,000 plus an additional $50,000 for the spouse and each dependent of the deceased victim".
To protect the rights of the unmarried domestic partner who received substantial economic support from a decedent, the Regulations should be amended to include, after the word "spouse" in each of Sections 104.43 and 104.44, the words "or unmarried domestic partner who relied upon the decedent for in excess of fifty percent of his or her support". The "in excess of fifty percent" benchmark is that used by the New York State Crime Victims Board in assessing an unmarried domestic partner's entitlement to an award for loss of support and would therefore seem an appropriate benchmark for use by the Fund. In the alternative, the Regulations should render clear that a "dependent" for purposes of Sections 104.43 and 104.44 is deemed to include an unmarried domestic partner who received in excess of fifty percent of his or her support from the decedent.
I am extremely concerned by the absence in the Regulations of triggers to ensure that an unmarried domestic partner who received substantial support from the decedent receives the portion of the award to which he or she is entitled. At the January 17th meeting, I addressed this concern with the Deputy Special Master. I indicated to the Deputy Special Master that, in cases where the relationship between the decedent's family and the unmarried domestic partner is acrimonious, the Personal Representative may very well refuse to include the unmarried domestic partner in the application to the Fund. In response, the Deputy Special Master stated that the unmarried domestic partner may, under separate cover, submit evidence of his or her loss of support as a supplement to the Personal Representative's application. However, the Regulations do not include a procedure for submitting such supplemental information (for example, it would not appear that a special application form will be made available by the Fund for this purpose).
Further, assuming that the Special Master recognizes the unmarried domestic partner's entitlement to compensation and increases the size of the award proportionately, it does not appear that there are any triggers in the Regulations obligating the Personal Representative to distribute the appropriate sum (or, indeed, any sum at all) to the unmarried domestic partner. Section 104.52 of the Regulations ("Distribution of award to decedent's beneficiaries") states, in relevant part, as follows:
The Personal Representative shall, before payment is authorized, provide to the Special Master a plan for distribution of any award received from the Fund. Notwithstanding any other provision of these regulations of any other provision of state law, in the event that the Special Master concludes that the Personal Representative's plan for distribution does not appropriately compensate the victim's spouse, children, or other relatives, the Special Master may direct the Personal Representative to distribute all or part of the award to be distributed to such spouse, children or other relatives.
When I raised the absence in the Regulations of any mechanism protecting the unmarried domestic partner's rights to a distribution of a portion of the award with the Deputy Special Master, his response was that, if the unmarried domestic partner did not receive the appropriate distribution, he or she would then be entitled to sue the Personal Representative in state court. In my view, this is an unacceptable burden to place upon the unmarried domestic partner, as he or she should not be placed in the position of having to litigate to assert his or her rights when the Special Master has already acknowledged his or her entitlement to a portion of the award. The unmarried domestic partner's rights could easily be protected by amending the provisions of Section 104.52 to include a reference to anyone recognized by the Fund as a dependent of the decedent (including an umarried domestic partner who received in excess of fifty percent of his or her support from the decedent) when the size of the award was being determined.
Individual Comment
Attn. Kenneth Feinberg
January 25,2002
Page 1
MEMORANDUM January 23, 2002
TO: Kenneth Feinberg, Esq.
Special Master
FROM:
RE: Comments on the Regulations governing the September 11th Victims' Compensation Fund
I am an associate with the New York office of . As part of the legal mobilization organized by the Association of the Bar of the City of New York ("ABCNY"), I have been acting as a Facilitator to an unmarried domestic partner of an individual killed in the World Trade Center disaster.
I attended the meeting at ABCNY on January 17th, 2002, at which you and the Deputy Special Master spoke. Among the issues addressed during the question and answer part of the evening was the entitlement of unmarried domestic partners to compensation through the Victims' Compensation Fund (the "Fund"). I was relieved to learn that unmarried domestic partners will, in certain cases, be entitled to compensation (although the application must be made by the deceased's Personal Representative who, in cases of intestacy, will generally be a family member and not the unmarried domestic partner).
My understanding from the January 17th meeting is that unmarried domestic partners who received substantial financial support (as distinguished from mere intermingling of finances) are eligible for compensation. However, this position is not readily apparent from the regulations governing the Fund issued by the Department of Justice (the "Regulations"). Section 104.43 of the Regulations provides, in relevant part: "In reaching presumed determinations for economic loss for Personal Representatives bringing claims on behalf of decedents, the Special Master shall consider sums corresponding to ... the number of dependents who survive the decedent; whether the decedent is survived by a spouse; and the amount and nature of the decedent's income for recent years". Similarly, Section 104.44 provides, in relevant part: "The presumed noneconomic losses for decedents shall be $250,000 plus an additional $50,000 for the spouse and each dependent of the deceased victim".
To protect the rights of the unmarried domestic partner who received substantial economic support from a decedent, the Regulations should be amended to include, after the word "spouse" in each of Sections 104.43 and 104.44, the words "or unmarried domestic partner who relied upon the decedent for in excess of fifty percent of his or her support". The "in excess of fifty percent" benchmark is that used by the New York State Crime Victims Board in assessing an unmarried domestic partner's entitlement to an award for loss of support and would therefore seem an appropriate benchmark for use by the Fund. In the alternative, the Regulations should render clear that a "dependent" for purposes of Sections 104.43 and 104.44 is deemed to include an unmarried domestic partner who received in excess of fifty percent of his or her support from the decedent.
I am extremely concerned by the absence in the Regulations of triggers to ensure that an unmarried domestic partner who received substantial support from the decedent receives the portion of the award to which he or she is entitled. At the January 17th meeting, I addressed this concern with the Deputy Special Master. I indicated to the Deputy Special Master that, in cases where the relationship between the decedent's family and the unmarried domestic partner is acrimonious, the Personal Representative may very well refuse to include the unmarried domestic partner in the application to the Fund. In response, the Deputy Special Master stated that the unmarried domestic partner may, under separate cover, submit evidence of his or her loss of support as a supplement to the Personal Representative's application. However, the Regulations do not include a procedure for submitting such supplemental information (for example, it would not appear that a special application form will be made available by the Fund for this purpose).
Further, assuming that the Special Master recognizes the unmarried domestic partner's entitlement to compensation and increases the size of the award proportionately, it does not appear that there are any triggers in the Regulations obligating the Personal Representative to distribute the appropriate sum (or, indeed, any sum at all) to the unmarried domestic partner. Section 104.52 of the Regulations ("Distribution of award to decedent's beneficiaries") states, in relevant part, as follows:
The Personal Representative shall, before payment is authorized, provide to the Special Master a plan for distribution of any award received from the Fund. Notwithstanding any other provision of these regulations of any other provision of state law, in the event that the Special Master concludes that the Personal Representative's plan for distribution does not appropriately compensate the victim's spouse, children, or other relatives, the Special Master may direct the Personal Representative to distribute all or part of the award to be distributed to such spouse, children or other relatives.
When I raised the absence in the Regulations of any mechanism protecting the unmarried domestic partner's rights to a distribution of a portion of the award with the Deputy Special Master, his response was that, if the unmarried domestic partner did not receive the appropriate distribution, he or she would then be entitled to sue the Personal Representative in state court. In my view, this is an unacceptable burden to place upon the unmarried domestic partner, as he or she should not be placed in the position of having to litigate to assert his or her rights when the Special Master has already acknowledged his or her entitlement to a portion of the award. The unmarried domestic partner's rights could easily be protected by amending the provisions of Section 104.52 to include a reference to anyone recognized by the Fund as a dependent of the decedent (including an umarried domestic partner who received in excess of fifty percent of his or her support from the decedent) when the size of the award was being determined.
Individual Comment
September 11 Email: Date
2002-01-25
Collection
Citation
“dojP000135.xml,” September 11 Digital Archive, accessed September 24, 2024, https://911digitalarchive.org/items/show/33399.