B-127227, APRIL 23, 1956, 35 COMP. GEN. 572

B-127227, APRIL 23, 1956, 35 COMP. GEN. 572

CLAIMS - TEXAS CITY DISASTER - SETTLEMENT OF CLAIMS THE MONETARY LIMITATIONS IN THE TEXAS CITY DISASTER RELIEF ACT OF AUGUST 12, 1955, ON THE AMOUNT WHICH MAY BE AWARDED FOR CLAIMS BASED ON DEATH, PERSONAL INJURY AND PROPERTY LOSSES ARISING FROM THE TEXAS CITY DISASTER ARE APPLICABLE TO THE PARTICULAR TYPE OF CLAIM, AS DISTINGUISHED FROM THE TOTAL AMOUNT EACH CLAIMANT MAY RECEIVE, AND, THEREFORE, A CLAIM BASED ON PERSONAL INJURY AND PROPERTY LOSS MAY BE APPROVED IN AN AMOUNT IN EXCESS OF $25,000 LIMITATION, BUT NOT IN EXCESS OF $25,000 EACH FOR PERSONAL INJURY OR PROPERTY LOSS. THE AMOUNT OF RECOVERY UNDER A CLAIM FILED PURSUANT TO THE TEXAS CITY DISASTER RELIEF ACT OF AUGUST 12, 1955, IS NOT LIMITED TO THE AMOUNT SOUGHT IN PRIOR CIVIL ACTION UNDER THE FEDERAL TORT CLAIMS ACT; HOWEVER, A CLAIM ORIGINALLY FILED FOR ONE TYPE OF DAMAGE DOES NOT ESTABLISH A BASIS FOR FILING A CLAIM FOR ANOTHER TYPE OF DAMAGE UNDER THE ACT. GRATUITIES AND GIFTS FROM AMERICAN RED CROSS, AND OTHER RELIEF ORGANIZATIONS, TO VICTIMS OF THE TEXAS CITY DISASTER ARE NOT PAYMENTS OR SETTLEMENTS WITH RESPECT TO CLAIMS ON ACCOUNT OF DEATH, PERSONAL INJURY OR PROPERTY LOSS WHICH ARE REQUIRED BY SECTION 6 OF THE ACT OF AUGUST 12, 1955, TO BE DEDUCTED FROM AMOUNTS TO BE AWARDED, BUT PAYMENTS FROM THE RAILROAD EMPLOYEES' RETIREMENT FUND, SOCIAL SECURITY, VETERANS' ADMINISTRATION AND WORKMEN'S COMPENSATION BENEFITS, ALONG WITH INSURANCE BENEFITS, ARE FOR DEDUCTION IN AMOUNTS PAID PRIOR TO THE TIME OF FILING THE CLAIM UNDER THE ACT. THE MONETARY LIMITATION IN THE TEXAS CITY DISASTER RELIEF ACT OF AUGUST 12, 1955, ON THE AMOUNT WHICH MAY BE AWARDED FOR CLAIMS BASED ON DEATH, PERSONAL INJURY AND PROPERTY LOSSES IS TO BE APPLIED AFTER COMPUTATION OF THE TOTAL AMOUNT OF DAMAGES LESS PAYMENTS FOR INSURANCE, SOCIAL SECURITY, ETC., BENEFITS REQUIRED TO BE DEDUCTED PURSUANT TO SECTION 6 OF THE ACT.

TO THE SECRETARY OF THE ARMY, APRIL 23, 1956:

REFERENCE IS MADE TO LETTER OF MARCH 5, 1956, WITH ENCLOSURE, FROM ASSISTANT SECRETARY OF THE ARMY, CHESTER R. DAVIS, CONCERNING THE ACT OF AUGUST 12, 1955, PUBLIC LAW 378, 69 STAT. 707, WHICH PROVIDES FOR THE INVESTIGATION AND SETTLEMENT BY THE SECRETARY OF THE ARMY OR HIS DESIGNEES OF CLAIMS AGAINST THE UNITED STATES FOR DEATH, PERSONAL INJURY, AND PROPERTY LOSSES PROXIMATELY RESULTING FROM THE EXPLOSIONS AND FIRES AT TEXAS CITY, TEXAS, ON APRIL 16 AND 17, 1947. THE LETTER REQUESTS OUR DECISION ON CERTAIN QUESTIONS ARISING IN THE SETTLEMENT OF THE CLAIMS WHICH REQUIRE INTERPRETATION OF THE ACT. THE QUESTIONS WITH RELATED FACTS, PROPOSED ADMINISTRATIVE ACTIONS AND STATEMENTS OF THE BASIS FOR THE ACTIONS HAVE BEEN SET OUT IN THE ENCLOSURE.

BEFORE CONSIDERING THE SPECIFIC QUESTIONS, IT APPEARS APPROPRIATE TO COMMENT BRIEFLY ON THE CIRCUMSTANCES UNDER WHICH THE LEGISLATION WAS ENACTED. SUBSEQUENT TO THE DISASTER APPROXIMATELY 300 COURT ACTIONS WERE INSTITUTED AGAINST THE UNITED STATES IN THE NAMES OF SOME 8,500 CLAIMANTS UNDER THE FEDERAL TORT CLAIMS ACT FOR DEATH, PERSONAL INJURY, AND PROPERTY DAMAGES. THE SUITS WERE CONSOLIDATED, AND IN THE FINAL DECISION ON THE LITIGATION THE SUPREME COURT HELD IN DALEHITE, ET AL. V. UNITED STATES, 346 U.S. 15, THAT THE CLAIMANTS COULD NOT RECOVER UNDER THAT ACT. SUBSEQUENTLY, PUBLIC LAW 378 WAS ENACTED. IT IS STATED IN SECTION 1 THEREOF THAT " CONGRESS RECOGNIZES AND ASSUMES THE COMPASSIONATE RESPONSIBILITY OF THE UNITED STATES FOR THE LOSSES SUSTAINED BY REASON OF THE EXPLOSIONS AND FIRES AT TEXAS CITY, TEXAS, AND HEREBY PROVIDES THE PROCEDURE BY WHICH THE AMOUNTS SHALL BE DETERMINED AND PAID.' THUS IT APPEARS THAT THE STATUTE IS REMEDIAL IN THAT IT REMEDIES PRE-EXISTING STATUTORY LAW AS IT AFFECTED THE PERSONS DAMAGED BY THE TEXAS CITY DISASTER. ON THE OTHER HAND IT CREATES CLAIMS AGAINST THE GOVERNMENT, AND AS SUCH IS IN DEROGATION OF SOVEREIGNTY. RULES OF INTERPRETATION AND CONSTRUCTION ARE SUBORDINATE TO THE PRINCIPLE THAT THE OBJECT OF ALL CONSTRUCTION AND INTERPRETATION IS THE JUST AND REASONABLE OPERATION OF THE PARTICULAR STATUTE, AND IT THEREFORE SHOULD BE POSSIBLE TO CONSTRUE THE STATUTE LIBERALLY TO AFFECT ITS REMEDIAL PURPOSE AND INTENT, AND STRICTLY TO PREVENT UNDUE EXTENSION OF EXTRAORDINARY REMEDIES. CF. OTOE AND MISSOURI TRIBE OF INDIANS V. UNITED STATES, 131 C.1CLS. 593, 602. WITH THIS PRINCIPLE AS A GUIDE, THE QUESTIONS WILL BE CONSIDERED AND ANSWERED IN THE ORDER OF THEIR PRESENTATION.

THE FACTS UNDER WHICH QUESTIONS NOS. 1, 2, AND 3 ARISE ARE STATED IN THE ENCLOSURE AS FOLLOWS:

SITUATION A.

FACTS:

ON 3 APRIL 1948, AS A RESULT OF THE TEXAS CITY DISASTER, SUIT WAS BROUGHT ON BEHALF OF A NUMBER OF PLAINTIFFS, INCLUDING ETHEL RICE, AGAINST THE UNITED STATES OF AMERICA IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION. EACH OF THE PLAINTIFFS SUED FOR HIMSELF AND ALSO AS TRUSTEE FOR THE USE AND BENEFIT OF HIS PLEDGEE AND CESTUI QUE TRUST INSURER, THE PHOENIX INSURANCE COMPANY. PLAINTIFF ETHEL RICE SUED FOR DAMAGE TO A DWELLING AND FURNITURE IN THE AMOUNT OF $3,000.00. ON 13 APRIL 1948 ANOTHER SUIT RESULTING FROM THE DISASTER WAS BROUGHT IN THE SAME COURT ON BEHALF OF A NUMBER OF PLAINTIFFS, INCLUDING ETHEL RICE, WIFE OF DECEASED, MARTHA HALL, MOTHER OF DECEASED, AND MOZELL RICE JAMESON, CHILD OF DECEASED, ALLEGING DAMAGES IN THE AMOUNT OF $50,000.00 FOR THE DEATH OF LORENZO RICE. IN ADDITION, ETHEL RICE ASKED IN THE SUIT FOR $400.00 AS REASONABLE AND NECESSARY FUNERAL EXPENSES INCURRED BY HER AS A RESULT OF THE DEATH OF LORENZO RICE, AND FOR $10,000.00 FOR PERSONAL INJURIES TO HERSELF. ON 8 FEBRUARY 1956, ETHEL RICE FILED A CLAIM ( CLAIM NO. TC-1564) ON BEHALF OF HERSELF AND MOZELL RICE JAMESON FOR $63,402.07 FOR THE DEATH OF LORENZO RICE, $49,883.20 FOR PERSONAL INJURIES TO HERSELF, $6,500.00 FOR DAMAGE TO REAL PROPERTY AND $2,155.00 FOR DAMAGE TO PERSONAL PROPERTY. MARTHA HALL IS NOW DECEASED.

CLAIMANT, ZELDA N. COX, FILES FOR INJURIES AND DAMAGES TO PERSONAL PROPERTY (TC-116). INJURIES ALLEGEDLY SUSTAINED BY HER INCLUDE DEAFNESS OF LEFT EAR, PAIN IN THE NECK AND BACK AND SHOULDERS, NUMBNESS AND LIMITED MOBILITY OF LEFT ARM, WHIPLASH NECK AND PROBABLE CERVICAL DISC, INSOMNIA, NERVOUSNESS, AND IMPAIRMENT OF VISION. CLAIMANT ASSERTS 75 PERCENT LOSS OF EARNING CAPACITY. CLAIM IS ALSO MADE FOR DAMAGE TO PERSONAL PROPERTY INCLUDING BEDROOM SUITE, LIVING ROOM SUITE, GAS RANGE, RADIO-RECORD COMBINATION AND CLOTHING. CIVIL ACTION 1176 BROUGHT BY THE CLAIMANT IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS INCLUDED A DEMAND FOR DAMAGES FOR PERSONAL INJURIES SUFFERED, BUT NO DEMAND FOR DAMAGES FOR LOSS OF ANY PERSONAL PROPERTY.

QUESTION NR. 1:

IN THE FIRST CASE UNDER SITUATION A, WITH REFERENCE TO SECTION 5 OF THE ACT OF 12 AUGUST 1955 ( P.L. 378, 84TH CONG.; 69 STAT. 707), MAY A CLAIM BASED UPON DEATH, PERSONAL INJURY AND PROPERTY LOSS, OR ANY TWO OF THESE TYPES OF DAMAGE, BE APPROVED IN AN AMOUNT IN EXCESS OF $25,000?

SECTION 5 OF PUBLIC LAW 378, PROVIDES:

SEC. 5. (A) CLAIMS FOR AWARDS BASED ON DEATH SHALL BE SUBMITTED ONLY BY DULY AUTHORIZED LEGAL REPRESENTATIVES. NO CLAIM UNDER THIS SUBSECTION SHALL BE APPROVED BY THE SECRETARY OF THE ARMY IN EXCESS OF $25,000.

(B) NO CLAIMS FOR PERSONAL INJURIES MAY BE APPROVED BY THE SECRETARY OF THE ARMY IN AMOUNT IN EXCESS OF $25,000.

(C) NO CLAIM FOR PROPERTY LOSSES MAY BE APPROVED BY THE SECRETARY OF THE ARMY IN AMOUNT IN EXCESS OF $25,000.

IT IS THE VIEW OF YOUR DEPARTMENT THAT A CLAIM BASED UPON DEATH, PERSONAL INJURY AND PROPERTY LOSS, OR ANY TWO OF THESE TYPES OF DAMAGE, MAY BE APPROVED IN AN AMOUNT IN EXCESS OF $25,000, BUT NOT IN AN AMOUNT IN EXCESS OF $25,000 EACH FOR DEATH, PERSONAL INJURY OR PROPERTY LOSS.

THE ONLY MONETARY LIMITATIONS APPEARING IN THE ACT ARE THOSE IN SECTION 5, QUOTED ABOVE. EACH SUBSECTION THEREOF PLACES A LIMITATION ON THE AMOUNT THAT MAY BE APPROVED FOR A PARTICULAR TYPE OF CLAIM, AND EACH SUBSECTION STANDING ALONE IS CLEAR. ACCORDINGLY, AND SINCE THE LIMITATIONS ARE DIRECTED AGAINST TYPES OF CLAIMS AS DISTINGUISHED FROM A LIMITATION ON THE TOTAL AMOUNT EACH CLAIMANT MAY RECEIVE, WE CONCUR IN THE VIEW OF YOUR DEPARTMENT.

QUESTION NR. 2:

IN THE FIRST CASE UNDER SITUATION A, MAY A CLAIM BE ENTERTAINED AND APPROVED IN AN AMOUNT GREATER THAN THAT SOUGHT IN THE PRIOR CIVIL ACTION REQUIRED UNDER SECTION 3 (A) OF THE ACT OF 12 AUGUST 1955, SUPRA?

QUESTION NR. 3:

IN THE SECOND CASE UNDER SITUATION A, ALSO WITH REFERENCE TO SECTION 3 (A) OF THE ACT OF 12 AUGUST 1955, SUPRA, MAY THE PORTION OF THE CLAIM FOR PROPERTY LOSS, ALTHOUGH NOT INCLUDED IN THE CIVIL ACTION, BE ENTERTAINED AND, IF OTHERWISE PAYABLE, APPROVED?

SECTION 3 (A) OF THE ACT PROVIDES IN PERTINENT PART AS FOLLOWS:

NO CLAIM SHALL BE ENTERTAINED BY THE SECRETARY OF THE ARMY UNLESS IS SHALL APPEAR TO HIS SATISFACTION THAT SUCH CLAIM WAS A PART OF A CIVIL ACTION FILED AGAINST THE UNITED STATES IN A UNITED STATES DISTRICT COURT PRIOR TO APRIL 25, 1950, EXCEPT THAT, FOR GOOD CAUSE, THE SECRETARY MAY WAIVE THE LIMITATION DATE OF APRIL 25, 1950, WHERE IT IS SHOWN THAT CLAIMANT, BY REASON OF INFANCY, INSANITY, OR OTHER LEGAL REASON, WAS UNABLE TO BRING SUCH CIVIL ACTION.

THE REASONS FOR INCLUSION OF THE ABOVE PROVISION LIMITING CLAIMS ARE EXPLAINED IN THE FOLLOWING STATEMENT CONTAINED IN HOUSE REPORT NO. 1305, 84TH CONGRESS, ST SESSION.

SECTION 3 SETS UP PROCEDURES UNDER WHICH CLAIMANTS SHALL SUBMIT THEIR CLAIMS. IT LIMITS THE CLAIMS TO BE ENTERTAINED HEREUNDER TO THOSE WHICH WERE FILED IN THE DISTRICT COURTS UNDER THE TORT CLAIMS ACT. THE COMMITTEE WISHES TO STATE THAT IN LIMITING THE CLAIMS, GENERALLY, TO THOSE WHICH HAVE ALREADY BEEN FILED IN THE FEDERAL COURTS, IT IS ITS INTENTION THAT THE SECRETARY OF THE ARMY SHOULD WHERE PRACTICABLE, CONSIDER THE CLAIMS IN THE MANNER IN WHICH THEY WERE ORIGINALLY FILED. WHILE IT IS THE INTENTION OF THE COMMITTEE TO AUTHORIZE PAYMENT TO THOSE INDIVIDUALS, FIRMS, COMPANIES, ASSOCIATIONS, AND CORPORATIONS, OTHER THAN SUBROGEES, THE COMMITTEE WISHES TO PREVENT THE SEVERING OR THE DIVISION OF ANY CLAIM BY ANY CLAIMANTS WHO MAY THEREBY SEEK TO CIRCUMVENT THE $20,000 LIMITATION PROVIDED FOR IN THE COMMITTEE AMENDMENT FOR EACH CLAIM. CLAIMS SHOULD BE ENTERTAINED, WHERE POSSIBLE, IN THE MANNER AND UNDER THE CIRCUMSTANCES UNDER WHICH THEY WERE ORIGINALLY FILED.

IT IS STATED TO BE THE VIEW OF YOUR DEPARTMENT THAT THE WORDS "CLAIM" AND "SUCH CLAIMS" SHOULD NOT BE LIMITED IN THEIR MEANING EITHER TO A PARTICULAR SUM OF MONEY OR TO A PARTICULAR TYPE OF DAMAGE FOR WHICH SUIT WAS INSTITUTED.

SINCE THE SUM OF MONEY TO BE PAID IN ANY PARTICULAR CLAIM IS NECESSARILY A MATTER FOR CONSIDERATION BY YOUR DEPARTMENT ON THE BASIS OF THE EVIDENCE SUBMITTED OR OTHERWISE ADDUCED, WE CONCUR WITH THE VIEW THAT THE AMOUNT CLAIMED UNDER THE ACT NEED NOT BE LIMITED TO THAT FOR WHICH SUIT WAS FILED. HOWEVER, A CLAIM ORIGINALLY FILED FOR ONE TYPE OF DAMAGE MAY NOT, CONSISTENT WITH THE CONGRESSIONAL INTENT AS INDICATED IN THE ABOVE-QUOTED STATEMENT, BE VIEWED AS ESTABLISHING A BASIS FOR FILING A CLAIM FOR ANOTHER TYPE OF DAMAGE UNDER PUBLIC LAW 378. THE WORD "CLAIM" IS UNIFORMLY USED IN THE ACT IN THE SENSE THAT IT REFERS TO EACH TYPE OF LOSS. SEE FOR EXAMPLE SECTIONS 2 AND 5. ACCORDINGLY, QUESTION NO. 2 IS ANSWERED IN THE AFFIRMATIVE AND QUESTION NO. 3 IN THE NEGATIVE.

THE FACTS UNDER WHICH QUESTIONS NOS. 4, 5, AND 6 ARISE ARE STATED IN THE ENCLOSURE AS FOLLOWS:

SITUATION B.

FACTS:

CLAIMANT, ORA ELIZABETH MENGE, ASKS $52,542.90 DAMAGES DUE TO THE DEATH OF HER HUSBAND IN THE TEXAS CITY DISASTER (TC-52). SHE LISTS AS AMOUNTS RECEIVED INCIDENT TO THE DEATH OF HER HUSBAND, A LUMP SUM AND A MONTHLY PENSION FROM THE RAILROAD EMPLOYEES RETIREMENT FUND; ALSO OTHER AMOUNTS FROM THE FIREMEN'S RELIEF AND RETIREMENT FUND, AUSTIN, TEXAS, THE FIRST BAPTIST CHURCH, TEXAS CITY, THE CARPENTER'S LOCAL NO. 973, TEXAS CITY, TEXAS, AND THE VOLUNTEER FIREMEN'S GRATUITIES, TEXAS CITY, TEXAS.

CLAIMANT, KATIE MARIE HERRIN, SEEKS $77,485.77 DAMAGES DUE TO THE DEATH OF HER HUSBAND, WHO WAS KILLED IN THE TEXAS CITY DISASTER (TC 80). ON 29 JULY 1947, THE VETERANS' ADMINISTRATION APPROVED AN AWARD AUTHORIZING A MONTHLY DEATH PENSION FOR THE CLAIMANT AND ONE MINOR CHILD. THE CURRENT TOTAL AMOUNT PAID MONTHLY UNDER THE PENSION IS $63.00. IN ADDITION, $150 WAS AWARDED FOR BURIAL EXPENSES.

CLAIMANT, ANGELA I. RAMIREZ, ASKS DAMAGES OF $51,000 DUE TO THE DEATH OF HER HUSBAND, TIMATEO RAMIREZ, WHO WAS KILLED IN THE TEXAS CITY DISASTER (TC-84). THIS CLAIM INCLUDES A DEMAND FOR REASONABLE AND NECESSARY FUNERAL EXPENSES. THE FILE DISCLOSES THAT CLAIMANT RECEIVED A CHECK FOR $150, THE PROCEEDS OF EMKEN-LINTON INSURANCE POLICY NUMBER 1563, PAYABLE JOINTLY TO CLAIMANT AND MALLOY AND SON, FUNERAL DIRECTORS. THIS CHECK WAS ENDORSED TO MALLOY AND SON AND CREDITED AGAINST THE DECEDENT'S FUNERAL EXPENSES.

CLAIMANT, PEARL M. JACKA HUGHES, SEEKS $65,184.55 AS DAMAGES DUE TO THE DEATH OF HER HUSBAND, JAMES JACKA (TC-385). SHE LISTS GIFTS FROM THE FOLLOWING SOURCES RECEIVED INCIDENT TO THE DEATH: AMERICAN RED CROSS, TEXAS CITY RELIEF FUND, AND COMMITTEE OF TEXAS CITY PAINTERS CHILDREN'S RELIEF FUND.

CLAIMANT, MARTHA L. WOOD, ASKS $48,289.80 FOR THE DEATH OF HER HUSBAND, CLARENCE J. WOOD, WHO WAS KILLED WHILE PERFORMING HIS DUTIES AS A FIREMAN FOR THE CITY OF TEXAS CITY. THE CLAIMANT RECEIVED COMPENSATION INCIDENT TO THE DEATH FROM THE FIREMEN'S RELIEF FUND, TEXAS CITY RELIEF FUND, INDEPENDENT ORDER OF ODD FELLOWS, AND VOLUNTEER FIREMEN'S GRATUITY, ALL OF TEXAS CITY, TEXAS.

CLAIMANT, DORA B. GHIRARDI, ASKS $62,291.96 AS DAMAGES FOR THE DEATH OF HER HUSBAND WHO WAS KILLED IN THE TEXAS CITY DISASTER (TC-16). CLAIMANT LISTS THE FOLLOWING COMPENSATION RECEIVED INCIDENT TO THE DEATH: WORKMEN'S COMPENSATION AND SOCIAL SECURITY BENEFITS, AMERICAN RED CROSS AND TEXAS CITY DISASTER RELIEF FUND ASSISTANCE, AND A GIFT FROM REPUBLIC OIL REFINERY, TEXAS CITY, TEXAS, THE DECEDENT'S EMPLOYER, WHICH MADE A SIMILAR GIFT TO THE SURVIVING DEPENDENTS OF ALL ITS EMPLOYEES WHO DIED IN THE DISASTER.

QUESTION NR. 4:

UNDER SITUATION B, WHICH TYPES, IF ANY, OF THE AMOUNTS RECEIVED BY CLAIMANTS MUST BE DEDUCTED, IN COMPLIANCE WITH SECTION 6 (A) OF THE ACT OF 12 AUGUST 1955, SUPRA, FROM THE AMOUNTS TO BE AWARDED?

SECTION 6 (A) OF THE ACT PROVIDES:

IN DETERMINING THE AMOUNTS TO BE AWARDED FOR DEATH, PERSONAL INJURY, OR PROPERTY LOSSES, THE SECRETARY OF THE ARMY SHALL REDUCE ANY SUCH AMOUNT BY AN AMOUNT EQUAL TO THE TOTAL OF INSURANCE BENEFITS (EXCEPT LIFE INSURANCE BENEFITS), OR OTHER PAYMENTS OR SETTLEMENTS OF ANY NATURE, PREVIOUSLY PAID WITH RESPECT TO SUCH DEATH CLAIMS, PERSONAL INJURY, OR PROPERTY LOSS.

THE CONSTRUCTION PLACED UPON SECTION 6 (A) BY YOUR DEPARTMENT, AS IT AFFECTS QUESTION NO. 4, IS THAT GRATUITIES AND CONTRIBUTIONS FROM THE AMERICAN RED CROSS AND VARIOUS RELIEF FUNDS, ALONG WITH LIFE INSURANCE BENEFITS, SHOULD NOT BE DEDUCTED FROM AMOUNTS TO BE AWARDED UNDER THE ACT, BUT THAT PAYMENTS AND SETTLEMENTS, IN SATISFACTION OF LIABILITIES OR OBLIGATIONS SUCH AS PAYMENTS FROM THE RAILROAD EMPLOYEES' RETIREMENT FUND, SOCIAL SECURITY, VETERANS' ADMINISTRATION AND WORKMEN'S COMPENSATION BENEFITS, ALONG WITH OTHER INSURANCE BENEFITS ARE TO BE DEDUCTED. THE WORD "PAYMENT" IS DEFINED AS THE "DISCHARGE OF MONEY OF A SUM DUE," AND AS IMPLYING "THE EXISTENCE OF A DEBT, OF A PARTY TO WHOM IT IS OWED, AND OF A SATISFACTION OF THE DEBT TO THAT TY.' 23 COMP. GEN. 953. THE WORD "SETTLEMENT" IS DEFINED IN BLACK'S LAW DICTIONARY, THIRD EDITION, AS THE ACT OR PROCESS OF ADJUSTING OR DETERMINING, AS WHEN PARTIES AGREE UPON THE BALANCE DUE FROM ONE TO THE OTHER. GRATUITIES AND GIFTS ARE NOT ENCOMPASSED WITHIN THESE WORDS, NOR IS THERE ANY INDICATION IN THE LEGISLATIVE HISTORY OF THE ACT THAT SUCH WERE TO BE INCLUDED AS ITEMS OF DEDUCTIONS. ACCORDINGLY, AND SINCE GRATUITIES AND GIFTS OF THE NATURE DESCRIBED WOULD APPEAR TO HAVE BEEN MADE FOR THE PURPOSE OF PROVIDING FOR IMMEDIATE PHYSICAL NEEDS AT THE TIME OF THE DISASTER, THE ACTION AS PROPOSED BY YOUR DEPARTMENT APPEARS TO BE CORRECT. IN THE CASE OF ANGELA I. RAMIREZ, WHILE NO TEXAS CASES IN POINT HAVE BEEN FOUND, POLICIES SUCH AS THERE INVOLVED HAVE BEEN HELD BY THE COURTS OF OTHER STATES TO BE "LIFE INSURANCE.' SEE PETERSON V. SMITH, 196 SO. 505, 506 AND STATE V. STOUT, 65 S.W. 2D 827. THEREFORE THE PAYMENTS THEREUNDER NEED NOT BE DEDUCTED. QUESTION NO. 4 IS ANSWERED ACCORDINGLY.

QUESTION NR. 5:

IF THE ANSWER TO QUESTION NR. 4 IS THAT THE PAYMENTS AND SETTLEMENTS SUCH AS SOCIAL SECURITY, VETERANS' ADMINISTRATION AND RAILROAD EMPLOYEES RETIREMENT FUND BENEFITS MUST BE DEDUCTED UNDER SECTION 6 (A) OF THE ACT OF 12 AUGUST 1955, SUPRA, IS IT PROPER TO COMPUTE THE AMOUNT PREVIOUSLY PAID AS OF THE TIME OF FILING OF A CLAIM, OR MUST THE AMOUNT PREVIOUSLY PAID BE COMPUTED UP TO THE TIME OF APPROVAL OF THE CLAIM?

IT IS THE ADMINISTRATIVE VIEW THAT PAYMENTS MADE PRIOR TO THE FILING OF THE CLAIM ONLY SHOULD BE DEDUCTED. OTHERWISE, SUPPLEMENTARY INVESTIGATION WOULD BE NECESSARY TO ASCERTAIN AMOUNTS RECEIVED UNDER CONTINUING BENEFITS. THIS WOULD ENTAIL A CONSIDERABLE ADMINISTRATIVE BURDEN AND THE PROCESSING TIME REQUIRED FOR THE DISPOSITION OF CLAIMS WOULD BE INCREASED.

SECTION 3 REQUIRES THAT CLAIMS BE SUBMITTED WITHIN 180 DAYS AFTER THE ENACTMENT DATE OF THE ACT AND THE BASIC INFORMATION AS TO DEDUCTIONS NECESSARILY MUST BE OBTAINED FROM SUCH CLAIMS. IT THEREFORE REASONABLY APPEARS THAT THE WORD "PREVIOUSLY" REFERS TO THE TIME OF FILING OF THE CLAIM. ACCORDINGLY AND IN VIEW OF THE LIMITED TIME FOR THE PROCESSING OF CLAIMS, THE SUGGESTED ACTION OF YOUR DEPARTMENT APPEARS REASONABLE AND NECESSARY IN ORDER TO PROCESS THE CLAIMS TIMELY. QUESTION 5 IS ANSWERED ACCORDINGLY.

QUESTION NO. 6:

IF THE ANSWER TO QUESTION NR. 4 IS THAT SOME OR ALL OF THE AMOUNTS RECEIVED BY CLAIMANTS SHOULD BE DEDUCTED IN COMPUTING AN AMOUNT TO BE AWARDED, IS THE $25,000 LIMITATION, AS PROVIDED IN SECTION 5 OF THE ACT OF 12 AUGUST 1955, SUPRA, TO BE APPLIED BEFORE DEDUCTIONS ARE MADE, OR ARE THE DEDUCTIONS TO BE TAKEN FROM THE TOTAL AMOUNT OF DAMAGES SHOWN BY THE EVIDENCE AND THEN THE $25,000 LIMITATION APPLIED?

THE ACTION AS PROPOSED BY YOUR DEPARTMENT IS TO TAKE THE DEDUCTIONS FROM THE TOTAL AMOUNT OF DAMAGES AS SHOWN BY THE EVIDENCE, AND THE APPLY THE $25,000 LIMITATION OF SECTION 5. AS ILLUSTRATIONS OF THIS PROPOSAL, IT IS SUGGESTED THAT UNDER TEXAS LAW IN DEATH CASES DAMAGES OF $40,000 TO $70,000 PROBABLY WOULD HAVE BEEN AWARDED BY COURT JUDGMENTS, WHEREAS $7,200 IS THE MAXIMUM DEATH PENALTY PAYABLE UNDER THE TEXAS WORKMEN'S COMPENSATION LAW. IF THE $7,200 PAID IS DEDUCTED FROM THE DAMAGES, NET LOSSES OF FROM $32,800 TO $62,800 WOULD RESULT. THE APPLICATION OF THE $25,000 LIMITATION TO SUCH NET LOSSES WOULD RESULT IN PAYMENTS OF $25,000 IN EACH CASE. IF ON THE OTHER HAND, THE $7,200 WAS TO BE DEDUCTED FROM THE $25,000, ONLY $17,800 WOULD BE PAYABLE.

ALSO, AS ILLUSTRATIVE OF THE PROPOSAL, YOUR DEPARTMENT SUGGESTS AN EXAMPLE OF TWO PROPERTY OWNERS WHO EACH SUFFERED PROPERTY DAMAGE OF $50,000, ONE CARRYING APPLICABLE INSURANCE OF $25,000, THE OTHER NOT BEING INSURED. THE APPLICATION OF THE $25,000 LIMITATION TO THE NET LOSSES WOULD RESULT IN PAYMENT OF $25,000 IN EACH CASE. IF, ON THE OTHER HAND THE AMOUNTS RECOVERED FROM INSURANCE ARE TO BE DEDUCTED FROM THE $25,000 LIMIT, THE INSURED PROPERTY OWNER WOULD RECEIVE NOTHING WHILE THE UNINSURED ONE WOULD RECEIVE $25,000.

THE $25,000 LIMITATIONS ARE ON THE AMOUNTS WHICH MAY BE APPROVED BY THE SECRETARY OF THE ARMY, THE SAME AMOUNTS WHICH THE SECRETARY OF THE TREASURY UNDER SECTION 7 IS DIRECTED TO PAY OUT OF THE TREASURY. HENCE, THE $25,000 LIMITATION IS APPLICABLE NOT TO THE COMPUTATION OF THE AWARDS BUT THE RESULT OF SUCH COMPUTATION. THIS VIEW IS CONSISTENT WITH THE LANGUAGE OF THE ACT BY WHICH THE GOVERNMENT ASSUMED THE COMPASSIONATE RESPONSIBILITY FOR THE RESULTS OF THE DISASTER AND THE INTENTION AND PURPOSE OF THE ACT AS STATED IN SECTION 4 THEREOF,"TO RELIEVE THE CLAIMANTS" THEREUNDER. THUS, IN THE ILLUSTRATION, THE GROSS DAMAGE OR LOSSES SHOULD BE ASCERTAINED, SUCH AMOUNT REDUCED BY THE DEDUCTIONS REQUIRED BY SECTION 6 AND THE RESULT, IF LESS THAN $25,000, CERTIFIED FOR PAYMENT. IF MORE FOR ANY PARTICULAR TYPE OF CLAIM, IT SHOULD BE CERTIFIED IN THE REDUCED AMOUNT OF $25,000 BY REASON OF SECTION 5 OF THE ACT. THUS, IN THE ILLUSTRATIONS USED ABOVE ALL OF THE FOUR CLAIMS WOULD BE PAYABLE IN THE AMOUNT OF $25,000. QUESTION NO. 6 IS ANSWERED ACCORDINGLY.

CERTAIN BRIEFS AND MATERIAL RELATIVE TO THE HISTORY OF THE STATUTE MADE AVAILABLE BY REPRESENTATIVES OF YOUR DEPARTMENT ARE RETURNED HEREWITH.