dojN002027.xml

dojN002027.xml

born-digital

email

yes

no

2002-01-18

Friday, January 18, 2002 2:29 PM
Dear Mr. Zwick



Attachment 1:



January 17, 2002

Kenneth L. Zwick, Director
Office of Management Programs
U.S. Department of Justice

Dear Mr. Zwick,

We are the only children of a firefighter who lost his life in the World Trade Center disaster. Our parents were divorced in 1990 and our father subsequently remarried, but had no additional children.

We are concerned that the Interim Final Regulations (the "Regulations") are not sufficiently clear and make it likely that there will be delays in the administration of the Fund. The Regulations also do not adequately address the problems faced by fragmented families like ours. Since 40-45% of marriages in the U.S. end in divorce, many families must share the difficulties of our situation.

We recommend that the Regulations be revised to reflect three concerns that, if addressed properly, will benefit the prompt and efficient administration of the Fund:
1. Amounts payable to individual beneficiaries should be reduced to reflect any collateral source income they received, but should not reduce the portion of the total award for beneficiaries who did not receive, and do not have a right to share in, the collateral income.
2. The provision in Section 104.52 of the Regulations regarding the Personal Representative's distribution of the award to beneficiaries should be clarified with regard to the body of laws that should guide such distributions.
3. The Fund should provide for the Special Master, where there is a broken marriage or in other appropriate cases, to appoint a neutral, third party to serve as the Personal Representative, and administer the claim on behalf of all eligible beneficiaries related to a particular decedent.
We below elaborate on each of these proposals.
First, if the total award is reduced because of a collateral source, any funds given to the recipient of that collateral source should be reduced accordingly, but the total award to other beneficiaries should not be affected. For example, if the total award, absent collateral income, would be $500,000, and a beneficiary who would otherwise be entitled to $250,000 (50%) of the award receives or is entitled to receive $400,000 in collateral income, the award should be reduced only by that beneficiary's entitlement, i.e., by $250,000, rather than by the full amount of the collateral income. The net award should be payable only to the other beneficiaries who did not receive the collateral income and have no right to benefit therefrom. In the case of dependents of a beneficiary receiving such collateral income, it could be presumed that the dependents have the right to benefit from the collateral income. For example, an adult beneficiary and her minor child can both be expected to benefit from collateral income that the adult receives. But where the other beneficiaries are not dependents, it would be entirely unjust to reduce their award because one beneficiary related to the same decedent has received (or has a right to receive) insurance proceeds or other collateral income. Currently, the rules do not clearly or adequately address this issue.
We believe this approach is consistent with the intent of Congress in enacting the Air Transportation Safety and System Stabilization Act (the "Act"). Section 405(c)(3)(A) of the Act provides for only one claim to be submitted on behalf of a deceased individual, and Section 405(b)(6) provides for reduction of "the compensation determined under paragraph (1)(B)(ii) by the amount of the collateral source compensation the claimant has received." Although Section 402(3) defines the "claimant" as the "individual filing a claim for compensation under section 405(a)(1)," we do not believe Congress intended to deprive beneficiaries claiming through a Personal Representative of their just compensation as a result of collateral source compensation to which they have no right. In fact, the Act uses the term "claimant" inconsistently. For example, Section 405(a)(2)(B)(ii) provides that the claim form to be developed by the Special Master should request "information from the claimant concerning any possible economic and noneconomic losses that the claimant has suffered" (emphasis added) as a result of the plane crashes; yet the Special Master, in developing the Presumed Loss Calculation Tables Before any Collateral Offsets, has logically interpreted this to include losses suffered by other beneficiaries claiming through the Personal Representative.
The Act's inconsistency in its use of the term "claimant" is understandable in light of the state of urgency in which the Act was drafted and adopted. Plainly, Congress did not have the time to consider what would be the most just outcome in each possible circumstance, and Congress for that reason left it to the Special Master to adopt rules and forms to carry out its intent. We therefore believe that the Special Master is entitled to interpret the provisions of the Act liberally so as to best carry out Congress' intent of providing fair compensation to innocent direct and indirect victims of the September 11th terror attacks. In that light, we submit that the Special Master should interpret Section 405(b)(6) as requiring that only compensation which would otherwise be due to a particular beneficiary who receives (or is entitled to receive, or otherwise benefit from) collateral source compensation income should be subject to offset by the amount of such collateral source compensation, rather than reducing compensation under the Act to beneficiaries who will not receive or benefit from such collateral source income. To interpret the Act otherwise would be to assume that Congress wanted innocent indirect victims of the terrorists attacks to be unjustly deprived of compensation.
Second, Section 104.52 of the Regulations is unclear as to how the award should be shared. The only direction given to the Personal Representative is that the award must be distributed "in a manner consistent with the law of the decedent's domicile or any applicable rulings made by a court of competent jurisdiction." We expect the generic reference to "the law of the decedent's domicile" to be a common source of confusion and urge that intestate laws, a body of laws that is well established and easily administered, provide the basis for distributions.
Furthermore, we take the reference to "applicable rulings made by a court of competent jurisdiction" as a suggestion that disputes among beneficiaries may be resolved through litigation. However, given the relatively small sizes of the awards to be split potentially among multiple beneficiaries, and the cost and delay litigation would entail, we believe the Regulations should do as much as possible to enable distributions to be made without the need for resort to litigation.
Third, the Regulations should provide for the Special Master (or his designee) to appoint a third party Personal Representative in appropriate situations, including in the case of fragmented families such as ours. Since our father did not leave a will, our understanding is that our father's wife would be his Personal Representative under Section 104.4 of the Regulations. As the Personal Representative, she would be in charge of distributing any award from the Fund, subject to the provisions of Section 104.52. Unfortunately, as is true of many fragmented families, relations between our family and our father's wife are strained. For example, we were not even notified of, much less invited to, our father's Fire Department memorial service. Furthermore, in the memorial card handed out to mourners, the adult daughter of his wife (from a previous marriage) was identified as his only child when, in fact, we are his only children. Although Section 104.52 authorizes the Special Master to intervene if children are not adequately compensated, we believe that this approach is only inviting difficulties because it does not address problems until after they have arisen. The process will be much more efficient and the interests of all beneficiaries will be better protected if beneficiaries in circumstances such as ours can request that a third party serve as the Personal Representative from the outset.
The Fund will not be justly administered if the intention of the Regulations is solely to ensure that a suitably-sized award is provided to "beneficiaries." The individuals who are mourning loved ones will only receive fair treatment if the Special Master gives more attention to how the award is ultimately distributed.
We respectfully submit that adoption of the proposals outlined above will help to avoid administrative delays and ensure that the Fund is administered smoothly and fairly, consistent with the Act and the intent of Congress.

Respectfully Submitted,

Individual Comment
Maspeth, New York

2002-01-18