W000769
Monday, November 26, 2001 8:11 AM
Advance Notice of Rulemaking for Comment
Dear Mr. Zwick,
My brother-in-law, was killed in the
South Tower of the World Trade Center on September
11th, 2001.
Enclosed is a recap of my understanding of the
'Victims Compensation' Legislation as well as my
comments and questions that arise from that
legislation.
If you have any questions or need further information,
please feel free to contact me at the above address.
Sincerely,
The September 11th Victims Compensation Fund PL107-42
(2001)
A victim or his estate may seek no-fault compensation
from the program or may bring a tort action against an
airline or any other party, but may not do both. To be
eligible to recover, a claimant will have to waive his
right to sue anyone for damages caused by the
terrorist attacks, except to recover collateral
source obligations
Amount of Recovery
Determined by the Special Master based on:
(i) the extent of the harm to the claimant, including
any economic and non-economic losses
(ii) the amount of compensation to which the claimant
is entitled based on the harm to the claimant, the
facts of the claim, and the individual circumstances
of the claimant.
The Special Master shall reduce the amount of
compensation .. . by the amount of the collateral
source compensation the claimant has received or is
entitled to receive .. Collateral source
compensation, as noted above, includes life
insurance, pension funds, death benefit programs and
payments by Federal, State, or local governments
related to the terrorist-related aircraft crashes of
September 11, 2001.
Several questions arise from this legislation:
1) Who has standing to file a claim?
Either the victim, someone injured by the aircraft
related events of 9/11/01 Or In the case of a deceased victim, the personal representative on behalf of the estate.
The legislation specifically prohibits family members
and others from filing a claim under this legislation
on their own behalf.
This narrow construction of who has standing to file a
claim under this legislation has two effects:
1) to require the waiver of all rights to sue anybody
on the part of the person filing the claim
2) at the same time specifically failing to extend
this same prohibition to others, presumably family
members, to bring a tort action against the airlines
or any other defendant to recover losses as a result
of 9/11.
If we accept that Congress clearly intended to
specifically limit claimants rights as well as
standing under this statute then I would suggest that
Congress also intended to equally narrowly construct
what constitutes Collateral source compensation as
it applies to recovery. Thus any Life Insurance,
Pension or other compensation payable upon death to
a named beneficiary OTHER THAN THE ESTATE should not
be considered as collateral source compensation as
these are not, in the language of the act
compensation the claimant (e.g. the Estate) has
received or is entitled to receive.
This line of reasoning carries even more weight when
considering payments from charitable organizations.
Again in the case of a decedent claimant it would seem
clear that these payments do not qualify for
consideration of award reduction as they are not, in
the language of the act compensation the claimant
(e.g. the Estate) has received or is entitled to
receive.
The question then becomes In the case of a decedent
claimant, what should be included in collateral source
compensation?
Should a 401(k) POD to the Estate be included?
Should a 401(k) POD to a named party other than the
Estate be included?
Should a Life Insurance Policy covering the decedent
and payable to the Estate be included?
Should a Life Insurance Policy covering the decedent
and payable to a named beneficiary other than the
estate be included?
Should a Life Insurance Policy covering a third party,
which is owned by the decedent and the decedent is the
named beneficiary, and the third party dies after the
decedent and unrelated to 9/11 events, be included?
Finally there remains much confusion about the
provision in the law that the determination of the
Special Master shall be final and not subject to
judicial review.
Was it congressional intent to prohibit the appeal of
the amount of an award granted by the Special Master?
Or was it the intent of Congress to prohibit all
judicial review even in the case of procedural error,
malfeasance and fraud?
Will the Federal Courts uphold the constitutionality
of a Congressional provision that bars all judical
review? Wouldn't this provision effectively abridge
the rights of a citizen to due process?
Can a claimant seek judicial review of a determination
by the Special Master where the claimant can
reasonable assert that the Special Master failed to
follow the established procedure and as a result
brought harm to the claimant?
- - - - - - - - - - -
Some additional comments:
I attended an 'information session' hosted by the law
firm of on November 16th,
in Woodbridge, New Jersey. This 'event' was
apparently put together with the assistance of several
widows of Cantor Fitzgerald employees/victims.
Essentially the event was a shameless 'infomerical'
for participating in 'the Fund' and endorsing the
position of Trial Lawyers Care (TLC).
I do not support the positions contained in the letter
drafted by these widows (in conjunction with )
and sent to you as comments under
the signature of "Families of September 11th Victims".
I also take issue with some of the positions / issues
that were offered during this event, including:
1) One of the widows responding to a question from the
audience indicating that " . . . DOJ was only
interested in hearing comments from victims families
(not the general public) because we have the power to
shape these regulations . . ."
2) The attorney who spoke for who suggested this
legislation allows for compensation of victims spouses
and other family members for 'pain and suffering'. I
believe the language of this bill is quite clear and
that Congress did NOT intend to include compensation
for 'pain and suffering' for anyone other than the
actual victim.
3) The attorney who spoke for describing NJ State
Law that currently does not allow for a spouse to
recover 'pain and suffering' on their own behalf in a
wrongful death case. This attorney went on to suggest
that the audience should support the efforts of in January 2002 to lobby the NJ State Legislature to
change the provisions of NJ's Wrongful Death Statutes
to allow for spousal compensation for 'pain and
suffering'. The clear implication was that such a
change would benefit Sept. 11 victims spouses should
they decide to file a civil action. However, I am
under the impression that our Constitution prohibts
Ex-Post Facto legislation and that any such change in
the statue would have no impact on litigation arising
from the September 11th tragedy.
Individual Comment
East Brunswick, NJ