W000555
Sunday, November 25, 2001 11:34 PM
(no subject)
Dear Mr. Zwick,
It is with great concern, and hope of preventing what may be a grave
injustice to all the families who lost loved ones during the tragic events of
September 11th, 2001 that I am compelled to contact you.
On September 11, the very fabric that symbolised the American family was torn
with such finality as to eliminate any possibility of mending with "monetary
thread." Despite that realization, I understand that the only compensation
available to the families of those lost on that horrific day is monetary in
nature. Subsequently, the establishment of the "Victims Compensation Fund"
(the fund) is logical. However, while the establishment of the fund is
logical, I fear that the guiding principals and mechanics of the fund are
not. After all, it is commonly stated that "the distance between thought and
deed is often far."
Having said that, and having reviewed the parameters of the fund, I felt it
was imperative to share with you the many reservations associated with the
fund's ability to accomplish its single purpose - economic equity for those
now painfully suffering from the loss of their loved ones. Below, you will
find those reservations.
First and foremost, it is imperative that each and every claimant be given
the opportunity to share their unique circumstances with the individuals who
will be instrumental in determining an award. In doing so, each claimant
shoukd be afforded both the opportunity to present evidence through their own
personal testimony and enlist the assistance of experts, if desired, in order
to provide a clear and concise depiction of their position. Allowing such an
opportunity will ensure fairness and onjectivity as each case will be heard
separately and awards will be based on the circumstances associated with each
case. On a personal note, the ability for an individual to share their pain
and suffering is instrumental to the long journey associated with the healing
process that every individual must now embark upon.
Second, I am alarmed by the fact that the government, who will ultimately pay
the awards, will be "appointing" one individual (The Special Master) to
determine the "extent of harm to the claimant." the amount of compensation to
be awarded based on "the harm to the claimant," "the fact of the claim" and
"the individual circumastances of the claimant." While I understand that the
"Special Master" will be designating individuals (hearing officers) to hear
each case independently, that knowledge does not instill the confidence or
peace of mind that I require to participate in the fund. Instead, I would
prefer an independent panel, perhaps three(3) to five (5) individuals, who
demonstrate expertise in areas such as "human life value," "wrongful death"
and "taxation." I believe that these individuals along with a "hearing
officer" are more likely to determine an award that is commensurate based on
the unique circumstances of each individual. Additionaly, I believe by
maintaining a panel of "hearing officers," the decision making process would
demonstrate a greater degree of objectivity.
Equally alarming is the fact that the determinations made by the "Special
Master" and "hearing officers" are "final" and "not subject to judicial
review." It is imperative that the option to appeal such a determination be
made available to the claimants. Again, fairness and objectivity should be
the guiding principals of the fund. In the event an award is not viewed as
equitable, an individual should, as in any hearing, maintain their right to
appeal a decision. The right to appeal a decision is often a connerstone of
legal defenses. If an appeal is available to a criminal, why then should an
innocent person not be afforded that same courtesy?
Next, the method used to compute "economic loss" is of paramount importance.
A "cap" with regard to recovery associated with "economic losses" is simply
not acceptable. In fact, we believe an approach such as the one commonly
utilized in personal injury cases is most applicable. Pursuant to such a
method, the deceased's retirement date should be set to coincide with the
date that the decease would have been eligible to recieve full Social
Security benefits. Also, the deceased's income should be averaged over the
last three (3) years given the fact that "economic losses of many of these
individuals are associated with future income streams that wou,d have been
highly contingent, variable, or unpredictable." With that in mind, an
approch that utilizes an "average income" is obviously the most appropriate
method for determining an individuals income. Also, be sure to keep in mind
that it is imperative that "income" include wages, bonus", stock options,
partnership earnings, etc. Finally, in an effort to fully reflect the
earning potential of those lost on September 11th, inflation, historical wage
increases, merit and opportunity for advancement must be considered. The
final result of such an exercise would represent the individual's "base
income." The "base income" could then be multiplied by the number of years
that the deceased individual would have worked had he/she been eligible to
receive full Soical Security benefits.
Furthermore, with regard to reducing the amount if the conpensation by the
mount of the "collateral source compensation," Life insurance proceeds
(private and/or group) associated with premiums paid by the deceased, should
not be considered as a "collateral source." After all, the deceased, in an
effort to ensure financial support for his/her family, made a prudent
decision to dedicate a portion of his/her after tax income to the financial
security. To consider life insurance proceeds associated with premiums paid
by the deceased as a "collateral source" would be akin to punishing the
deceased for loving & caring enough about his/her family to ensure their
financial future in the event of a tragedy were to occur.
Also, Social Security benefits should not be considered as a "collateral
source." After all, the deceased paid into the system in an effort to ensure
"social security." Unfortunately his/her family now represent the members of
society that are in need of the very "security" that the system was designed
to provide. The deceased was not given a choice of "opting out" of social
security system. On the contrary, an individual has no choice but to
contribute to the Social Security system. With that in mind, it is obvious
that his/her family should not be punished for recieving such benefits.
After all, the Social Security system was never intended to be a "needs
based" benefit. All individuals, regardless of income and assets, assuming
that they secured the appropriate number of "quarters," have always been
entited to benefits regardless of the other type of assets/income that they
may or may not have. Interestingly, countless millionaires receive Social
Security benefits despite the fact that the income is not needed to ensure
their financial well being. With this in mind, why should a benefit that
plays an instrumental role with regard to a family's financial security be
deducted from an award?
Next, retirement plans (IRA'S, 401 k, etc.) funded by the actions and
sacrifice of the deceased should not be considered as a "collateral source."
Again, the deceased, in an effort to ensure financial support for his/her
family, made a prudent decision to set aside funds designed to ensure a
comfortable retirement. A great deal of legislation (past & present) has
been adopted in order to motivate individuals's to plan for their future.
Today represents the first step of that financial future. To consider
retiremment plans a "collateral source" would again be akin to punishing the
deceased for loving and caring enough about his/her family to forgo current
enjoyment in order to ensure financial stability in the event of a tragedy.
Additionally, A "cap" with regard to recovery associated with "non economic
losses" is simply not acceptable. In fact. it is imperative that the
assistance of expert in the field of "human life value," be enlisted to
determine an appropriate award given the ambiguity associated with valuing
the "non economic role" of an individual. After all, the loss of the family
unit, enjoyment of life and emotional pain is not easily discemible.
However, given that I am both questioning the "fairness" of the fund and
taking the position that benefits (life insurance proceeds & social security
benefits) associated with payments made by the deceased should not be
considered "collateral source compensation." It is understandable that the
benefits funded by an employer (i.e. Workers Compo.) may be deducted from an
award. After all, the maintaining of "Workers Compensation" is mandatory for
employers and the premium associated with such coverage is an expense of the
employer. This in turn may make this benefit similar in nature to the
employer provided, non-contributory life insurance coverage - the $100,000
received from CNA. With this in mind, it is easy to understand that the
"benefit" is employer provided and may be considered a "collateral source
compensation."
In closing, I would like to take a moment in advance ti thank you for a fair
and impartial assessment of our comments. Of course it is our only hope to
ensure that any award associated with the fund is fair and equitable and
accomplishes the funds single purpose - economic equity for those now
painfully suffering from the loss of their loved ones.
Sincerely,
Individual Comment