N001926
Thursday, January 17, 2002 10:09 AM
Comments to the Interim Final Rule - Noneconomic losses
Kenneth L. Zwick
Director, Office of Management Programs
Civil Division
U.S. Department of Justice
Main Building
Room 3140
950 Pennsylvania Avenue, NW
Washington, DC 20530
My brother worked in the World Trade Center, and died as a result of the
terror attacks on September 11. I appreciate the work you have done in
the difficult process of trying to draft rules to apply the Airline
Stabilization Act (the "Act") that are within the Act's meaning and fair
to all the parties involved. However, I feel that the presumptive award
calculations enunciated in the interim rules, particularly in the case
of non-economic losses, misses the mark.
Please keep in mind that the Act took away very significant rights of
the victims by capping the liability of the airlines at the same time as
setting up the victim compensation fund (the "Fund"). It also requires
the victim's representative to forgo his rights in pursuing a remedy in
a court of law as a condition applying for benefits from the Fund
(without knowing the amount of the settlement that they are accepting
into). I also believe that the public is being misled into thinking
that payouts from the fund is much more generous (making "instant
millionaires" out of victim's families) than they will actually turn out
to be ("1.6 million dollars on average" fails to account for the various
collateral source deductions).
I have read many comments suggesting that payments from the fund should
be thought of as "a helping hand" rather than "compensation." However,
compensation is clearly what the Act requires. The Act has
significantly curtailed the rights of victim's families to seek damages
in court and, at the same time, set up the fund so that the burden for
protecting the airlines and other parts of the economy would not be
shouldered by the very same people who have already suffered the
ultimate loss (i.e. the victims and their families). The fund,
therefore, is an attempt to provide for fair and just compensation
outside of lawsuits.
The amount of "presumed non-economic loss" of $250,000 plus $50,000 for
each of the victim's spouse and dependants is not in concert with the
Act and has no relationship whatsoever with amounts of non-economic
losses awarded in wrongful death lawsuits. Instead, the amount is tied
to some arbitrary amount of life insurance that the federal government
offers to members of the military and public safety officers? This
makes no sense, and is directly contrary to the requirements of the Act.
The Act passed by Congress and signed by the President defined
"non-economic losses" in twelve categories, including losses for
physical and emotional pain, suffering, inconvenience, physical
impairment, mental anguish, disfigurement, loss of enjoyment of life,
loss of society and companionship, loss of consortium (other than loss
of domestic service), hedonic damages, injury to reputation, and all
other non-pecuniary losses of any kind or nature.
The interim rules do not even make an attempt to comply with the very
plain language of the Act.
Congress decided that it would be in the best interest of the nation to
prevent the collapse of the airline industry by limiting lawsuits
brought by victims, and these victims are entitled to receive
compensation in line with what Congress spelled out in the Act. It is
not for the Department of Justice to substitute its judgment for that of
Congress and the President by arbitrarily discounting non-economic
losses.
The amount of life insurance, upon which the interim rules bases the
non-economic loss "calculation", is totally unrelated to pain and
suffering, mental anguish and other non-economic losses and was not
arrived at by weighing all of the factors that the Act lists. It should
also be noted that life insurance payout to public safety officers and
members of the military (i) is made whenever a public safety officer is
killed while on duty regardless of the cause of death, regardless of how
much suffering was involved, and regardless of who was at fault (ii) is
not reduced by collateral sources including the amounts of any
additional life insurance that such public safety officers or members of
the military may have purchased on their own behalf, (iii) is not
contingent upon the deceased or his family giving up his right to sue
for wrongful death, and (iv) is not made in consideration of significant
liability caps being placed on a potential defendants.
Consider the situation of a member of the US military who died in the
terrorist attacks on the Pentagon. Under the interim rules his family
would be entitled to presumed non-economic damages of $250,000. The Act
then requires them to deduct the $250,000 government life insurance
amount. Thus, the Act not only leaves him with ZERO for non-economic
damages, should he choose to accept it, it also severely limits his
alternative rights by capping the amount of liability by the airlines.
I do not believe that Congress intended such a result.
While a fair amount of compensation is admittedly difficult to arrive
at, there is plenty of precedent. Judges and juries do this all the
time in wrongful death cases, and, depending on the state law being
applied, often arrive at an amount considering many or all of the very
same factors required by the Act. The rules would do better to
calculate the presumptive economic loss by applying the Act rather than
substituting an arbitrary life insurance amount.
Thank you for considering my views on this.
Individual Comment
Frankfurt, Germany