Lawyers Journal

MBA questions fairness of Sept. 11 victim fund rules

At a special meeting last month, the MBA House of Delegates voted to submit comments on the federal September 11 th Victims Compensation Fund of 2001, saying it is concerned that, because participants will waive their rights to file any other action related to the Sept. 11 terrorist tragedies, the government must ensure that all claims are handled fairly and in a manner consistent with traditional tort damage principles. Click here to view the comments or click below for more of this story.
The comments, prepared by the MBA Presidential Task Force on the Preservation of Rights, Liberties and Access to Justice, were submitted to the U.S. Department of Justice on Nov. 26, its final day for public comment on the rules. The DOJ is set to begin accepting claims on Dec. 21 and a special master appointed by Attorney General John Ashcroft will oversee the dispensing of money to cover lost wages and victim's pain and suffering.
"We support the efforts of Congress in establishing the September 11th Victim Compensation Fund of 2001. We hope that the fund will be administered in a fair manner, so that compensation will occur swiftly and justly for the many affected families," said the report. "To meet these goals, the administration of the fund must preserve the due process rights of all claimants and allow for full compensation as provided by the legislation."
The fund, established as part of the Air Transportation Safety and System Stabilization Act, will provide compensation to families and victims of the Sept. 11 terrorist attacks on the Pentagon and World Trade Center and of the hijacked airliner that crashed in Pennsylvania.
The MBA task force, which also will review the USA Patriot Act of 2001 and the Military Order of Nov. 13, 2001, opposes several American Bar Association's recommendations, including its proposal that the funds be administered by arbitrary categories or pre-determined ranges of recovery.
"The MBA rejects any attempt to introduce structure and rigidity into awards, to set ranges of awards and to cap damages," the report said.
The MBA comments also address the thorny issue of whether charitable gifts from the many relief funds related to the Sept. 11 events should be considered in calculating victims' compensation. The MBA opposes including charitable gifts in calculating collateral sources, noting that it would represent an unprecedented digression from traditional tort damage principles and create a dangerous precedent for the future. Also, the MBA is concerned that such action may have a severe and enduring chilling effect upon charitable giving in the future, and create a disincentive to participate in the Victims Compensation Fund.
The MBA voted to include the following in the Department of Justice's regulations:
? A definition of collateral source that states: "It shall (collateral source) not include any grants or gifts given, or expected to be given, to the claimant as a result of the terrorist-related aircraft crashes on Sept. 11, from any non-profit, religious, or other charitable 501 (c) (3) organization." Also, it urges that the reduction of the award should only include collateral source compensation the claimant has received, and is reasonably certain to receive in the future.
? Given the complexity of damages, the uniqueness of the procedure and the finality of the decision, use of a lawyer in the claims process is strongly encouraged.? Since a claim is not deemed filed upon submission, but rather upon the determination that it is complete, the regulation must provide an extension mechanism for claims submitted on or near the two-year deadline.? The amount of compensation sought should not be stated on the form completed. Claimants proceeding without the benefit of counsel may be placed in a disadvantageous position if this amount is included.

? The deduction of collateral source payments from any award must be stated specifically, and the award must address the right of subrogation for certain collateral source payments. Additionally, the collateral source deductions shall only be made from the award to the beneficiary receiving the collateral source.
For more information and a complete copy of the MBA comments, visit www.massbar.org.

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