A001820
December 14, 2001
Kenneth L. Zwick
Director, Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue NW
Washington, D.C. 20530
Re: Notice of Inquiry and Advance Notice of Rulemaking, September 11th Victim
Compensation Fund
Interest of Marsh & McLennan Companies, Inc.
On the 11th day of September, 295 members of the Marsh & McLennan ("MMC") family lost their
lives in the World Trade Center attacks. MMC's interest in submitting these comments is to continue our support for the families of the MMC employees affected by this tragedy and to ensure that charitable financial support and in-kind assistance provided by MMC, its employees, and friends enhance, rather than undercut, the recoveries awarded to victims under the September 11th Victim Compensation Fund ("the September 11th Fund").
MMC is keenly aware of the anxiety felt by the families of the September 11th victims as a result of the daunting administrative burden they have faced since the date of the tragedy. While MMC recognized the difficulty of the task facing the Department of Justice and the Special Master, to develop a comprehensive framework of substantive and procedural rules that are fair, we urge you to keep those procedures simple, and respectful of the privacy rights of victims' families. We also applaud the outreach effort that has been made to encourage comment from the families of victims and the general public and urge you to continue to seek such input.
Charitable Contributions and In-Kind Contributions Should Not be Deemed Collateral Sources Under the Air Transportation Safety and System Stabilization Act (the Act")
Like many companies who lost colleagues in the September 11th attacks, MMC has attempted to
assist in attending to the emotional and financial needs of the loved ones of the victims. In addition to engaging professional relationship managers to help families navigate the administrative burdens faced by victims' families, and to coordinate the provision of financial and emotional counseling to each affected family, MMC has provided ex gratia financial assistance to families and has created and helped fund the MMC Victims Relief Fund. These efforts have been supported by generous financial and in-kind contributions by MMC's employees, clients, and friends.
MMC strongly supports the view that such charitable contributions and ex-gratia in-kind gifts be excluded from the Act's definition of "collateral source." The level of charitable giving on behalf of the families of the victims of the World Trade Center tragedy has been unprecedented and inspiring. MMC believes that such an overwhelming, generous response to a national tragedy should be encouraged as a matter of national policy. The promulgation of a rule that would convert such charitable giving into a factor that reduces the make-whole damage remedy that a victim would otherwise be entitled to under the Act, would undermine, rather than encourage, such a positive response and lessen the likelihood that a similar outpouring of support would follow any future tragedy.
Treating charitable contributions as a "collateral source" would also betray the expectations of those who have so generously given of themselves during this time of need, and those who have been the recipients of such generosity. Individuals making donations to victim relief funds did not do so with the expectation that they were, in effect, subsidizing a government program designed to aid the Nation's airlines by offering victims' families an alternative to personal injury actions. Similarly, families who have
accepted cash or in-kind contributions of services or goods, have not done so with an understanding that such acceptance would undermine their right to seek a full recovery for their losses under the statutory scheme developed by Congress.
Exclusion of gifts from the definition of "collateral source" will also meet the stated Congressional intent of encouraging participation in the Victim Compensation Program and discouraging resort by victims to protracted, costly and emotionally devastating litigation. In addition, the weight of legal authority supports the proposition that payments made to a victim on the basis of compassion, rather than under compulsion of law or contract triggered by a specific event, should not be deemed a "collateral source" payment.
Finally, exclusion of gifts from the definition of collateral source will ease the administrative burden of the applicants to the September 11th Fund, the special master, and the myriad charitable trusts and individuals that would be called upon to provide or consider evidence of gift-giving. Gifts-in-kind and the provision of assistance services would present valuation issues, and awards would have to be made based on incomplete evidence given that some charitable gifts may not be paid for months or years to
come. A charitable organization could even feel compelled to adopt a policy of delaying decisions on gifts for fear that awarding gifts prematurely would undermine the victims' ability to obtain full recovery from the September 11th Fund.
Application Procedures, to the Extent Permissible by Law, Should be Simple, Flexible and Protective of the Privacy Rights of the Families of Victims
MMC urges that the procedures developed for the submission of documentary evidence and for the hearing and presentation of evidence be simple, and sensitive to the privacy rights of the families of victims. Consideration should be given to providing families with a menu of administrative schemes under which they may elect to pursue their claims; these could range in complexity from a streamlined application procedure requiring minimal individualized proof to a more comprehensive evidentiary review requiring the presentation of documentary evidence and testimony at an administrative hearing. Alternate procedural tracks will help meet the divergent needs of victims' families.
We are also concerned that in determining the extent of harm to the claimant, and the compensation needed to redress such harm, the Special Master is called upon to consider evidence of the "individual circumstances of such claimant." Because such evidence is likely to be deeply personal to the families of the victims, we urge the Special Master to develop procedures that, to the extent permitted by law, allow these details to remain outside of the public domain. Such confidentiality rules will serve to both
protect the privacy of family members and encourage participation in the program.
MMC also urges the Special Master to make available to all applicants the option of offering common or shared evidence. The availability of employer affidavits or reports prepared by experts appointed by the Special Master will obviate the need for applicants to gather and offer evidence on an individualized basis. These streamlined procedures will expedite the gathering and presentation of evidence, save money, promote fairness and further the stated goal of the Fund to "offer all potential claimants a more expeditious, predictable, and less complex alternative to..." litigation.
Conclusion
MMC is grateful for the opportunity to provide these limited comments concerning the September 11th Victims Compensation Fund and appreciates the efforts being made by the Attorney General and the Special Master.
Sincerely,
Comment by:
Marsh & McLennan Companies, Inc.