N002642
January 21, 2002
BY FAX (301) 519-5956 and E-MAIL
The Honorable Kenneth Feinberg
Special Master
Victims' Compensation Fund
Office of Management Programs
Civil Division
U.S. Department Of Justice
Main Building, Room 3140
950 Pennsylvania Avenue
Washington, DC 20530
Kenneth L. Zwick, Director
Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building, Room 3140
950 Pennsylvania Avenue
Washington, DC 20530
Re: Comments to Interim Final Rules
Dear Messrs. Feinberg and Zwick
My firm represents several families who have lost loved ones in the attack on the World
Trade Center on September 11th.
I am writing this letter in response to your request to comments to the Interim Final Rules
for the administration of the Victims' Compensation Fund that were issued on December
20th.
I believe that there are four distinct issues that warrant your attention and, ultimately,
revision of the rules before they are finalized. The issues are the definition of a spouse,
failure to provide benefits for companions in alternative family arrangements, the
inclusion of certain pension benefits paid to peace officers in "collateral sources," and the treatment of workers' compensation.
Definition of Spouse.
The Interim Rules generally defines "spouse" as the person with whom a victim filed a joint tax return unless returns were filed on the basis of "married filing separately."
While such a definition provides for a degree of certainty and prevents fraudulent claims by
nonrelatives, it is ultimately flawed by its oversimplification. As I am sure that you can have become aware, there have been a number of claims filed in state courts by cohabitants who have claimed that they are the spouse of the decedent under the common law of various jurisdictions, including the state of Pennsylvania which neighbors New York. A limited number of jurisdictions, recognize common law marriage-however, when a couple has become "married" under the laws of that jurisdiction, they are legally married for all purposes and in all jurisdictions. For example, while New York, the presumptive domicile of most of the victims of the attack on the World Trade Center, abolished common law marriage, New York courts recognize common law marriage entered into by New York residents in common law marriage states. See, e.g., Skinner v. Skinner, 4 Misc. 2d 1013, 150 N.Y.S. 2d 739 (Sup. Ct. N.Y.. Co. 1956); McCullon v. McCullon, 96 Misc. 2d 962, 410 N.Y.S. 2d 226 (Sup. Ct. Erie Co. 1978).
In an ideal world, common law spouses wold always file their tax returns jointly or as married filing separately. However, the existence of a common law marriage is predicated on legal and factual tests that often the couples themselves do not fully understand, and that their tax preparers have no competence to determine. Thus, to be on "safe ground," many couples who view themselves as being married and are, in fact, common law spouses, do not file as married.
Assuming that the surviving cohabitant can demonstrate to the satisfaction of a factfinder in the State court that is administering the decedent's estate that a common law marriage exists - which will almost assuredly be contested by the decedent's "blood" relatives if the decedent died intestate - the cohabitant should also be recognized as the spouse for all purposes by the Victims' Compensation Fund.
Nonmarital partners.
Aside from common law marriage situations, the Interim Final Rules do not adequately take into account the realities of family arrangements in the 21st century. a gay or lesbian survivor will be precluded from receiving any form of compensation from the Fund unless the decedent had the foresight to make testamentary provisions for his or her nonmarital partner - and, in any event, will not receive the same degree of compensation as a surviving heterosexual spouse.
Unlike heterosexual couples, gay and lesbian couples cannot be legally married - and yet they conduct themselves as a family unit. They cohabitate, support each other, and make loving commitments to each other.
Certainly, in the wake of the most unexpected and devastating assault ever on American soil,
compassionate treatment in the form of compensation for surviving gay and lesbian nonmarital
partners cannot be viewed as "supporting" a particular lifestyle. Instead, it should be viewed as basic human decency by even the most ardent political and religious conservatives.
Similar problems exist for heterosexual couples who cohabitated but did not have a ceremonial marriage or become common law spouses. there are many reasons why a couple who are dedicated to each other might not formalize their relationship: different religions, the inability of one or both parties to marry in their house of worship due to divorce, or, simply, the desire to avoid unpleasant family disputes and expense that a marriage ceremony sometimes entails.
stated simply, conventional heterosexual marriage is not the only manner in which two
consenting adults make emotional and financial commitments to each other. As a result, there are many persons, gay, lesbian and heterosexual, who suffered the devastating loss of their nonmarital partner in the September 11th attach, yet will be precluded from any recovery if the victim failed to make testamentary provision for his or her partner.
Of course, it is understandable that Mr. Feinberg, as Special Master, would not want to be put in the position of having to make extensive factual determinations regarding a nonmarital relationship between the decedent and his or her companion. Marriage provides a bright-line test as to the emotional and financial commitment that the parties have made to each other.
However, other objective criteria can be applied. Status as a nonmarital partner who should be entitled to recover from the Fund can be determined from registration as a committed nonmarital couple in New York City or other jurisdictions that proved for such registration. Similar indicia that can be considered includes whether th person has succession rights to a New York rent controlled or stabilized apartment as a person with whom the named tenant had an emotional and financial commitment.
In other words, the Final Rules can provide for a nonmarital partner using one or more objective tests to determine whether a bona fide alternative family relationship exists. Such a solution will not be perfect, but it addresses the reasonable need to avoid having to make extensive factual determinations while providing some manner of redress for nonmarital partners who can objectively demonstrate their deep and committed relationship to someone who perished as a result of the September 11th attacks.
A nonmarital partner who has lost a loved one on September 11th has suffered as much as a
someone who has lost their "lawful spouse" - and sometimes even more as a result of their lack of recognition by the decedent's family. A nonmarital partner should not be further victimized solely because his or her relationship with the decedent did not conform to a traditional definition.
Inclusion of Peace Officer Pension benefits as Compensation from a Collateral Source.
A spouse of a deceased peace officer (i.e., policemen and firemen) will be entitled to a pension based upon earnings in the most recent years preceding death. Generous pension benefits to surviving spouses are provided in recognition that peace officers are sorely underpaid for the risks that they take for the benefit of society.
By including such pension benefits as collateral source obligations that reduce a recovery from the Fund, two important public policies will be thwarted: one, the need to provide some sort of reward to the families of brave men and women who died in the line of duty, and two, the need to provide incentives for the families of deceased victims to forego their rights to sue potential litigants such as the airline industry, the Port Authority of the City of New York, the owners of the World Trade Center, etc.
I believe that you can plausibly exempt such special pension benefits from the definition of
"collateral source" in the same manner that you exempted charitable gifts. However, if you
otherwise feel constrained by the statutory definition of collateral source benefits, I would urge you to seek an amendment to the statute to remove benefits paid to deceased peace officers from the definition of collateral source benefits.
Workers' Compensation.
As a commentator noted in the Appendix to Preamble to the Interim Final Rules, workers who
were killed at their place of employment in the World Trade Center attack are entitled to
Workers' Compensation Benefits. Workers' Compensation benefits are a no-fault method of
compensating persons injured or killed in their place of employment, and are generally provided for by insurance.
Technically, in order to pursue Worker' Compensation, a claim must be filed against an
employer and, if there is an insurance carrier, that carrier.
The Final Rules should clarify that making a Workers' Compensation claim does not preclude a
victim or his or her family from obtaining an ward from the Victims' Compensation Fund. a
Workers' Compensation claim is not the type of cause of action that Congress intended to have a potential Fund beneficiary forego - rather, the purpose of the Fund is to provide a certain award in exchange for foregoing litigation with complex factual or legal issues that could take years to resolve and could result in financial catastrophe to potential defendants such as the airline industry.
Moreover, the level of recovery from Workers' Compensation is relatively small - generally $400 per week for a surviving spouse and dependent children, and if there is no spouse or dependent, $50,000 payable to surviving parents - and cannot be considered to be the equivalent of a claim that Congress meant to avoid with the creation of the Fund.
Similarly, as a Workers' Compensation claim is sui generis, the proceeds therefrom should be
explicitly excluded from the definition of collateral source benefits.
Conclusion.
You have an unenviable task. To paraphrase an old television show, there are a million stories in the big city. As a result of your position, you have to deal, in a fair and equitable manner, with thousands of tragic stories from the September 11th attack and with complexities that no one has ever had to address before.
I salute your efforts to provide for the victims of the September 11th attack and their families in a prompt, humane and expeditious manner consistent with your statutory mandate. I thank you in advance for your consideration of the comments to the Interim Final Rules, and for your efforts in this most difficult task.
Sincerely,
Individual Comment
New York, NY