W000594
Monday, November 26, 2001 2:25 PM
Comments on DOJ notice regarding September 11th Victim Compensation Fund of 2001
I am working closely with a family that lost their father on September 11th. He was with in the WTC north tower. The family has great concern as to whether sufficient information will be available about the rules for the compensation fund, and the potential compensation from the fund, to permit an informed decision on whether to participate.
My responses to your request for comments are:
e) - Effective date for rules. Since the first opportunity to see the actual rules will be when they are issued on December 21, 2001, the ability to have an opportunity for a round of comment and potential amendment is critical. The plan to issue the regulations as "interim final" rules as discussed under
b) could be consistent with that need, providing the comment and amendment period is preserved.
Topics #1 and 2 - Claim Forms. The claim form information should be clear about the exact information required for the claim. The office of the Special Master should immediately review the claim, and if the claim is complete, it should be accepted and deemed filed as of the submittal date. If the claim is incomplete, the missing information should be identified and the claim returned to the applicant for completion and re-filing. (It would also be useful to define a period for the initial review, e.g. the first 30 days of the 120-day period.) The 120-day period for a re-filed claim should be measured from the time the claim is re-filed.
Topic #3.
· Regarding dismissal and re-filing of a claim with inadequate supporting information. As discussed under Topics #1 and 2, an incomplete claim should have the missing information identified, and be returned to the applicant for completion and re-filing.
· Regarding appeal to the Special Master of "rulings" or "working decisions" of a hearing officer. Since there is no appeal from the decision of the Special Master, the only protection from an improper decision by a hearing officer is to provide a right of appeal directly to the Special Master. Extension of the 120-day period in that situation would be appropriate, and would serve to discourage frivolous appeals.
Topic #4 - Assistance to claimants. The most important assistance is having clear instructions, and examples for calculating losses, included in the rules. Further support via auxiliary information, answers to frequently asked questions etc. can also assist. Use of a web site for keeping potential claimants up to date would also be helpful.
Topic #6 - Nature and amount of compensation.
· The guidelines that will be used to evaluate economic losses should be published as part of the rule process, including hypothetical or presumptive awards. These guidelines should be formulated by a panel of experts, who are representative of the best talent that a litigant might employ. This will ensure consistent treatment of all claimants, and will assist in the evaluation as to whether to participate in the process.
· Non-economic loss evaluation guidelines should be determined and published in the manner described above for the economic losses.
· It would seem that classes of victims for September 11th could be fairly easily established. In litigation for damages, there would be distinctions drawn based on the circumstances of death, and the resulting pain and suffering experienced by both the victim and the victim's family. Where contributory negligence prevented the possibility of a rescue, the pain and suffering are exacerbated. On the upper floors of the WTC north tower, victims were trapped for 1 3/4 hours before the collapse of the building. Downward escape was blocked by fire, and upward escape to the roof blocked by the deliberate decision of the Port Authority to prevent emergency access to the roof (in violation of the fire code). As reported in the Wall Street Journal on October 23, 2001, police helicopters were standing by with hoists
to take people off the roof (ten at a time) beginning five minutes after the impact of the first plane. And, in the opinion of the helicopter pilots, the roof was sufficiently clear of smoke to have permitted such rescues. The extent of the trauma experienced by the victims who were in this situation is reflected in the substantial number who chose to jump to certain death. Those victims and their families would certainly seem to represent a special case.
· Regarding collateral sources.
§ Charitable contributions tend to be proportional to need. Considering them as a collateral source would have the effect of making the greatest reduction in the victim compensation award for those who have the greatest need. Nothing in the language of the act appears to prevent the exclusion of charitable contributions from the definition of collateral sources. Also, equitable administration of inclusion would be difficult, if not impossible. The same reasoning applies to "in kind" or material contributions.
§ It is not clear whether potential future payments would include such items as Social Security and Workman's Compensation benefits. Again it would seem that those most in need would suffer the greatest reduction in compensation if those items were considered to be collateral sources. If they are to be included, the treatment of such items needs to be clearly stated, with identification of included items and the discounting to be applied both for timing and any risks of actual occurrence.
§ A further issue is potential future educational support for the children of victims. Such support may not materialize, and in many cases a resolution will be well beyond the time frame allotted for this fund.
§ The above cases reinforce the need for an explicit definition of what items are to be considered collateral sources, and how each of them is to be treated. Also, will there be an opportunity for a future adjustment in the award if a presumed collateral source does not materialize?
Thank you for your consideration of these comments.
Individual Comment
Wilton, CT