W000361
Friday, November 16, 2001 9:31 AM
Comments
Attachment 1:
Kenneth L. Zwik, Director
Office of Management Programs
U.S. Department of Justice, Civil Division
Email: victimcom.comments@usdoj.gov
November 16, 2001
Dear Mr. Zwik:
As a relative of one of the victims of the September 11th terrorist
Attacks, I trust that the regulations for the Victims Compensation Fund
("The Fund") can be fashioned in such a manner to bring equity and closure
This most awful chapter in American history. Towards that end, the Fund
must be structured to encourage victims' families to surrender their rights
to sue because they believe they will be treated fairly and promptly. To
send such a compelling message I respectfully submit that the regulations
must contain following elements:
1. Do not reduce the award from any collateral source funds collected,
including insurance, pension benefits, death benefits, and governmental
payments (which we understand are being considered as offsets). Such
offsets should be disallowed for, among other reasons, the same reason the
IRS exempts life insurance proceeds from taxation (i.e., to encourage
citizens to plan for their heirs). Such offsets would penalize those
victims who sacrificed and saved for their families' futures and unjustly
transfer these assets, thereby representing a lifetime of work, to
insurance companies and other corporate entities that may share the blame
for the consequences that resulted from the tragic events of 9/11. In
a nutshell, these assets have nothing to do with the damages that flowed
from 9/11, and therefore there should be no offset to damages based on the
net worth of the victims' families. It would also result in awarding more
in damages to those who did not sacrifice and save for their families'
futures, which would be an inequitable result.
2. Provide the victims' families with the right to appeal the award, as
doing so would undoubtedly increase participation in the Fund.
3. Should the Department of Justice decline to offer victims' families
the right to appeal, then at a minimum they should have input regarding the
selection of the mediator who would decide the award. The government
should provide a list of potential mediators with their background (e.g.,
educational, work experience, prior award history, etc.), which would allow
victims' families to make an informed choice.
4. There should be set parameters for calculating damages (i.e.,
mathematical formula factoring lost future earnings, pension benefits,
number of children, and other pecuniary benefits that would have been
earned taking into consideration life expectancy tables), that would
provide a floor for calculating damages and provide assurance to victims'
families as to what they could expect to receive, at a minimum, if they
elected to opt into the Fund. I believe this has been referred to in the
press as the development of a "grid." In short, the victims' families
should be able to calculate, with some certainty, the minimum amount of
money they could expect to be awarded prior to participating in the
hearing. That should serve as a powerful inducement to opt into the Fund.
5. Determine pain and suffering at the hearing.
6. If the mediator deviates for the guidelines the victims' families
should be able to appeal the decision.
7. The regulations should include a scheme that would afford the victims'
families one that is similar to the one they would enjoy in a wrongful
death case. The amount awarded, as damages should include all funeral,
burial and estate administration expenses incurred. Importantly, the
amount should compensate the victims' family for contributions they would
have received between the time of his death and the end of this life
expectancy, such as future lost wages. His gross earnings, including all
fringe benefits between the date of his death and his life expectancy must
be factored in. Additionally, all monies the victim would have spent for
or given to his family for such items as shelter, food, clothing, medical
car, education, entertainment, gifts and recreation, taking into account
his salary and age must also be considered. The amount awarded should
also consider the comfort and friendship that he would have given to his
family had he lived and such other elements as work around the home and
provision of society and comfort.
8. Since the amount awarded would be intended to restore the victim's
family's loss, it should not be considered as "income." Therefore, it
should not be taxable by the federal or state taxing authorities.
In closing, I understand that the DOJ is suggesting that the victims'
families surrender their right to sue without advising them what they
can anticipate by way of award and without the ability to appeal such
award. This is, to be kind, unacceptable. The above suggestions would
encourage attorneys and families alike to opt into the Fund, thereby
forgoing their right to sue. This would bring closure to an American
Tragedy and reassure victims' families that our government has their
best interests at heart. We only want to place them in the financial
position they would have been in had their loved ones not been taken
away in the worst terrorist attacks in American history which may have
been avoided. But that is another story. Thank you.
Respectfully,
Sister-in-law of lost in WTC Tower 2
Individual Comment
Lindenhurst, NY