Marchand v. Marchand

2008 NMSC 065, 199 P.3d 281, 145 N.M. 378
CourtNew Mexico Supreme Court
DecidedOctober 14, 2008
Docket30,608
StatusPublished
Cited by1 cases

This text of 2008 NMSC 065 (Marchand v. Marchand) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marchand v. Marchand, 2008 NMSC 065, 199 P.3d 281, 145 N.M. 378 (N.M. 2008).

Opinion

OPINION

BOSSON, Justice.

{1} Alfred G. Marchand (Alfred) was a flight attendant on United Airlines Flight 175, one of the two airplanes that terrorists caused to crash into the World Trade Center in New York City on September 11, 2001. He was the sole New Mexico resident to die in the tragic events of that day. Alfred died intestate, survived by his wife Rebecca Marehand (Rebecca), his adult son by a previous marriage Joshua Marchand (Joshua), and his dependent stepson Trae Hale (Trae), Rebecca’s son by a previous marriage. Rebecca filed for probate of Alfred’s estate (the Estate) in September of 2001 and was appointed Personal Representative. The probate of the Estate was closed, and Rebecca discharged as Personal Representative, on December 5, 2003. Joshua received a distribution from the Estate in the amount of $16,553.25, along with a 1989 Chevy Blazer and other personal property. The remainder of the Estate was distributed to Rebecca as Alfred’s surviving spouse.

{2} Rebecca applied to the September 11th Victim Compensation Fund (“the Fund”) for victim’s relief and federal aid on November 28, 2003. The dispute in question involves the proper distribution of the award from that Fund. Before we discuss the specific award in this case, we first set forth a brief background of the Fund and the federal legislation that created it.

September 11th Victim Compensation Fund

{3} The Fund was created as part of the Air Transportation Safety and System Stabilization Act (Air Stabilization Act), 49 U.S.C. § 40101 (2001), enacted by Congress to provide compensation for those injured or killed in the terrorist attacks of September 11, 2001. Individual claimants were afforded an opportunity to receive an award from the Fund, thereby waiving their right to file civil actions for damages related to the events of September 11, 2001, except to recover collateral source obligations, such as insurance, or to pursue actions against the terrorists responsible for the attacks. Air Stabilization Act, 115 Stat. 240 § 405(c)(3)(B)® (2001).

{4} In the case of a person who was killed in the attacks, the Air Stabilization Act designated the Personal Representative of the Estate as the sole eligible claimant. 28 C.F.R. §§ 104.2(a)(2)-(3), 104.4 (2008). After appointment as Personal Representative by a court of competent jurisdiction, the claimant had to provide written notice of the claim to beneficiaries and interested parties to the Estate. 28 C.F.R. § 104.4(b). Upon receipt of a Fund award, and absent an agreed upon distribution plan between the beneficiaries of the award, the Personal Representative was legally obligated to distribute the award according to the law of the decedent’s domicile or any applicable state court rulings. 28 C.F.R. § 104.52 (2008).

{5} A Special Master appointed by the United States Attorney General oversaw the implementation of the Fund and determined the amounts to be awarded to claimants based upon the harm to the claimant, the facts of the claim, and the individual circumstances of the claimant. Air Stabilization Act, 115 Stat. 237-38 § 404(a) (2001); § 405(b)(l)(B)(i)-(ii). Fund awards included damages for both economic and non-economic losses. Id., 115 Stat. 238 § 405(b)(l)(B)(I).

{6} Economic loss, defined as “any pecuniary loss resulting from harm,” id. § 402(5), was calculated through a methodology that took into account anticipated lost benefits such as income and earnings. 28 C.F.R. § 104.43(a) (2008). Non-economic damages were defined as “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 ... and all other nonpeeuniary losses of any kind or nature.” Air Stabilization Act, 115 Stat. 237 § 402(7) (2001). Because of the inherent difficulty in determining non-economic losses for individual claimants, the regulations designated uniform non-economic loss awards of $250,000 for the Estate of the decedent and $100,000 for the spouse and each dependent of the victim. 67 Fed. Reg. 11,233, 11,239 (Mar. 13, 2002); 28 C.F.R. § 104.44 (2008). The Special Master could deviate from such “presumed” non-economic loss amounts in extraordinary circumstances. 28 C.F.R. §§ 104.31(b)(2), 104.33(f)(2) (2008).

{7} The Fund was remarkable for its efforts to guarantee substantial compensation, as opposed to just minimal assistance, for victims of the September 11th attacks. See generally Kenneth S. Abraham & Kyle D. Logue, The Genie and the Bottle: Collateral Sources Under the September 11th Victim Compensation Fund, 53 De Paul L.Rev. 591, 594 (Winter 2003). However, there was also a concern to avoid over-compensation. See id. at 597-98. Important to this appeal, Congress required the Special Master to reduce a claimant’s total award “by the amount of the collateral source compensation the claimant has received or is entitled to receive.” Air Stabilization Act, 115 Stat. 239 § 405(b)(6). Collateral source compensation included life insurance proceeds, pension funds, and other death benefits programs. 28 C.F.R. § 104.47(a) (2008).

{8} After the Special Master determined the amount to be awarded on a given claim, he would send a letter to the Personal Representative detailing the final award determination. The letter broke down the various components of the award, specified the collateral offsets and beneficiaries to whom those offsets were attributable, and provided other information to guide the Personal Representative in distributing the award according to the law of the decedent’s domicile. 28 C.F.R. § 104.52. The Special Master’s award determinations were final and not subject to judicial review. Air Stabilization Act, 115 Stat. 238-39 § 405(b)(3).

Claim on Behalf of Alfred G. Marchand

{9} Rebecca filed a timely claim with the Fund as the Personal Representative of the Estate. Her efforts in pursuing the award included retaining a New York law firm, traveling to New York City for testimony, and preparing an economic loss analysis of Alfred’s anticipated income. Joshua did not participate in filing the claim with the Fund, nor was he required to. Rebecca submitted a list of all individuals entitled to a Fund award and agreed to distribute any award according to New Mexico law. Though Rebecca submitted a proposed distribution plan for the award, there is no indication in the record that the Special Master ever approved that plan.

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2008 NMSC 065, 199 P.3d 281, 145 N.M. 378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marchand-v-marchand-nm-2008.