Morris v. D.C. Dept. of Emp. Services, 85-234.

• Citation: 530 A.2d 683
• Decision Date: 24 August 1987
• Docket Number: No. 85-234.,85-234.
• Parties: Ulyses MORRIS, et al., Petitioners, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.
• Court: D.C. Court of Appeals

530 A.2d 683

Ulyses MORRIS, et al., Petitioners, v. DISTRICT OF COLUMBIA DEPARTMENT OF EMPLOYMENT SERVICES, Respondent.

No. 85-234.

District of Columbia Court of Appeals.

Argued May 27, 1986.

Decided August 24, 1987.

John F. Lillard, III, Washington, D.C., for petitioners.

Michele Giuliani, Asst. Corp. Counsel, with whom John H. Suda, Acting Corp. Counsel at the time the brief was filed, Charles L. Reischel, Deputy Corp. Counsel, and Richard B. Nettler, Asst. Corp. Counsel, Washington, D.C., was on the brief, for respondent.

Before NEBEKER, MACK and STEADMAN, Associate Judges.

STEADMAN, Associate Judge:

For the first time, we are presented with a substantive case involving the "Victims of Violent Crime Compensation Act of 1981" ("the Act"), D.C.Code §§ 3-401 et seq. (1986 Supp.).¹ In October 1982, Ulyses Morris, Jr., age 16, was fatally shot in front of his home. His parents (petitioners) filed a claim that was denied by the Office of Crime Victims Compensation (OCVC), a branch of the Department of Employment Services (DOES), in a "preliminary determination." Id. § 3-411(b)(2). They then obtained a hearing on their claim as a "contested case" before the DOES Office of Appeals and Review, pursuant to § 3-411(b)(3). Following an adverse decision in that proceeding as well, they filed a petition for review in this court under § 3-412.² Because we harbor some uncertainty as to the totality of the reasoning underlying the final DOES decision (attached as an appendix to this opinion), and considering the significance of this case as one of first impression, we reverse and remand for amplification and possible further proceedings.³

I. The Act

The Act in its general functioning is straightforward, although its detailed interpretation is not. A "claimant" who suffers "economic loss" as a result of a "crime of violence" may file a claim with OCVC. §§ 3-401(1), (3), (5). First, the claimant is determined to be "eligible for compensation." § 3-402. Second, the amount of the claimant's economic loss, decreased by compensation from collateral sources, is determined, up to a maximum of $25,000. The amount so determined is the potential award of compensation under the Act. § 3-403(b). However, finally, the award is to be denied if the claimant will not suffer "undue financial hardship" if the award is not made to the claimant. § 8-403(c).

Three classes of individuals may be "claimants" under the Act: a crime victim, a surviving dependent of a deceased victim, and "a person who is responsible for the maintenance and support of a victim, and⁴ who incurs expenses on behalf of the victim for economic loss incurred as a result of the injury or death of the victim." § 3-401(1)(C). Petitioners made their claim under the third category,⁵ asserting that they had suffered "economic loss" as a result of their son's death.

For those filing claims following the death of a crime victim, "economic loss" is defined as follows:

(B) For a dependent or person responsible for the maintenance of a victim as described in paragraph (1)(C) of this section:

(i) Actual expenses of the victim's funeral and burial but not to the extent that the expenses exceed $2,000;

(ii) Loss of the victim's support;

(iii) Loss of the victim's services, including housekeeping and child care services; and

(iv) All actual and reasonable expenses incurred for medical treatment (including ambulance, hospital, surgical, nursing, and other medical and professional services and devices) of the victim prior to his or her death which results from a crime of violence.⁶

Petitioners sought compensation for economic loss under subparts (ii), loss of the victim's support, and loss of the victim's services.⁷

II. Loss of Support

With respect to loss of support, petitioners presented evidence that their son contributed earnings from odd jobs of about $80 per week to household expenses. They thus calculated their total economic loss in this regard as $52,416. The figure was arrived at by multiplying $80 by 52 weeks by the 33.6-years' life expectancy of the mother. Since the statutory cap on awards is $25,000, under § 3-408(b), the claim was necessarily limited to that maximum.

Two possible problems exist with this analysis. One is that no offset is made to reflect the fact that claimants no longer are liable for outlays to support their minor son. This reveals a possibly more fundamental obstacle to recovery — that claimants in their category may not be able to recover "economic loss" of the type they are claiming. It seems illogical to say that a claimant is eligible to file a claim because he is "responsible for the maintenance and support of a victim" and then allow recovery for "loss of the victim's support." It is the claimant who is supporting the victim, not vice versa. The contribution by the son of $30 per week simply reduces the amount of support necessary for the claimants to provide him; it is not necessarily a separate "economic loss" resulting from the death of the victim.

This reading of the statute is supported by certain language in the statute and the legislative history. Section 3-401(1)(C), which defines claimants, requires that a person responsible for the maintenance and support of a victim must also be one "who incurs expenses on behalf of the victim for economic loss incurred as a result of the injury or death of the victim." (Emphasis added.) This could be read to exclude such claimants from seeking "loss of support" or "loss of services" under §§ 3-401(5)(B)(ii) and (iii), and instead to restrict this type of claimant to expenses incurred for medical treatment and funeral expenditures on behalf of the victim. See §§ 3-401(5)(B)(i) and (iv). Furthermore, the report accompanying the proposed act describing the relevant section, § 3-401(5)(B), states: "The second item of economic loss is loss of the victim's support. This includes financial support that the victim would have provided to the dependent had the victim survived." (Emphasis added.) Council of the District of Columbia Report, Bill No. 4-361 (1981) at 7.

If DOES indeed interprets the Act in this manner, it would explain the fact that DOES in its consideration of the claimed "loss of the victim's support" did so solely in the context of the claimants' status as "dependents" of the victim. DOES sets forth a number of substantially unchallenged facts establishing that the claimants did not meet the definition of dependent in the statute,⁸ and concluded that therefore "no economic loss has been shown for loss of victim's support." Clearly if DOES does in fact interpret the Act as allowing only a dependent to make such a claim, the failure to prove dependency disposes of the issue.

On the other hand, there are also indications that persons responsible for the maintenance of a victim are not automatically barred from claiming loss of support under the Act. First, § 3-401(5)(B) defines economic loss for a dependent or person responsible for the maintenance of a victim without expressly stating that subsections (ii) loss of support and (iii) loss of services do not apply to persons responsible for the maintenance of a victim. Second, the implementing DOES regulations may suggest that claimants can make out a loss of support claim without showing that they are dependents as defined in the statute. DOES Rule 109.5, 29 D.C.Reg. 5211-13 (1982), sets forth the procedure for computing "loss of support." DOES Rule 109.5(c) governs petitioners, as "parents of the victim."⁹ This section makes no provision for establishing the dependency of the parents on the child-victim. However, the next section, DOES Rule 109.5(d), governs claimants who are "dependent for principal support upon the victim" and that section explicitly requires a finding of 50% support of the claimant by the victim. If DOES Rule 109.5 subsections "a-e" are read independently,¹⁰ then under this analysis, parents of victims like petitioners could recover loss of support if they could show that there is a net loss in the household. DOES Rule 109.5(c). In this case, petitioners presumably would have had to show that they expended on the victim less than the $30 per week the victim brought into the family.¹¹ It does not appear that DOES performed this calculation in reaching its conclusion that no economic loss had been shown.¹²

III. Loss of Services

Petitioners also claimed that they had suffered economic loss from the loss of their son's services. DOES found that the son performed various tasks around the house (such as cleaning, vacuuming, and removing the trash) occupying about fifteen hours a week. DOES stated that while petitioners had claimed that the loss of these services would cost an additional $201 per month,¹³ it had not been shown that such additional expense was "reasonable or necessary." It also observed that there were three other adult persons to share in the carrying out of these chores, which would amount to less than one hour per day per person, and thus there was no loss of the victim's services to cause an "undue financial hardship."¹⁴

Again, we have some uncertainty in discerning the correct basis for the DOES decision denying any compensation for the loss of services, even assuming that that loss of the victim's services is a category under which a person responsible for maintenance and support may recover.¹⁵

DOES Rule 109.6, dealing with the computation of economic loss suffered as a result of loss of the victim's services, reads as follows:

In computing loss of services, the following rates shall apply:

(a) The purchase or reimbursement of services such as laundering, cleaning, child care, administration of medication, marketing, and meal preparation shall not exceed the minimum hourly wage rate. When these services are provided by a member of the family of the victim or claimant, the Office may pay the net loss of earnings incurred by such family member not to exceed $200 per week, if the family...