CLAIM SUMMARY/DETERMINATION FORM

Claim Number N10036-1699

Claimant Donald Meyer

Type of Claimant Private (US)

Type of Claim Loss of Profits and Impairment of Earning Capacity

Amount Requested $5,116.00

FACTS 

On or about 20 April 2010, the Mobile Offshore Drilling Unit Deepwater Horizon (Deepwater 

Horizon) exploded and sank in the Gulf of Mexico. As a result of the explosion and sinking, oil 

was discharged. The Coast Guard designated the source of the discharge and identified BP as a 

responsible party (RP). BP accepted the designation and advertised its OPA claims process. On 

23 August 2010, the Gulf Coast Claims Facility (GCCF) began accepting and adjudicating 

certain individual and business claims on behalf of BP.

CLAIM AND CLAIMANT

On 29 February 2012, Mr. Donald Meyer (the Claimant) presented a claim to the Oil Spill 

Liability Trust Fund (OSLTF) seeking $5,116.00 in loss of profits and impairment of earning 

capacity damages resulting from the Deepwater Horizon oil spill.1

The Claimant owns a rental condominium unit in Fort Walton Beach, Florida. The Claimant 

alleged to have sustained a loss of rental income in the summer months of 2010 as a result of the 

Deepwater Horizon oil spill. The Claimant stated that beaches on which the condominium 

complex sits were directly affected by oil pollution. Specifically, the Claimant stated, 

“occupancy collapsed in half during the spill . . . CNN was broadcasting oil spill horror stories 

from the beach with our unit in the background.”2

The Claimant seeks to recover rental income allegedly lost from June to September 2010 as a 

result of the oil spill, totaling $5,116.00.3

APPLICABLE LAW 

Under the Oil Pollution Act of 1990 (OPA), at 33 U.S.C. § 2702(a), responsible parties are liable 

for removal costs and damages resulting from the discharge of oil into or upon the navigable 

waters or adjoining shorelines or the exclusive economic zone, as described in Section 2702(b) 

of OPA. 

The OSLTF which is administered by the NPFC, is available, pursuant to 33 U.S.C. § 2712(a)(4) 

and § 2713 and the OSLTF claims adjudication regulations at 33 C.F.R. Part 136, to pay claims 

for uncompensated damages. One type of damages available pursuant to 33 C.F.R. § 136.231 is 

a claim for loss of profits or impairment of earning capacity due to injury to or destruction of 

natural resources.

Under 33 C.F.R. § 136.233 a claimant must establish the following:

(a) That real or personal property or natural resources have been injured, destroyed, or lost.

1 Optional OSLTF Claim Form, signed on 20 February 2012. 

2 Letter from the Claimant to the GCCF, 27 January 2012.

3 Optional OSLTF Claim Form, signed on 20 February 2012.

 
(b) That the claimant’s income was reduced as a consequence of injury to, destruction of, or 

loss of property or natural resources, and the amount of that reduction.

(c) The amount of the claimant’s profits or earnings in comparable periods and during the 

period when the claimed loss or impairment was suffered, as established by income tax 

returns, financial statements, and similar documents. In addition, comparative figures for 

profits or earnings for the same or similar activities outside of the area affected by the 

incident also must be established.

(d) Whether alternative employment or business was available and undertaken and, if so, the 

amount of income received. All income that a claimant received as a result of the 

incident must be clearly indicated and any saved overhead and other normal expenses not 

incurred as a result of the incident must be established. 

Under 33 C.F.R. § 136.105(a) and § 136.105(e)(6), the claimant bears the burden of providing to 

the NPFC, all evidence, information, and documentation deemed necessary by the Director, 

NPFC, to support the claim. 

Under 33 C.F.R. § 136.235, the amount of compensation allowable for a claim involving loss of 

profits or impairment of earning capacity is limited to the actual net reduction or loss of earnings 

or profits suffered. Calculations for net reductions or losses must clearly reflect adjustments 

for—

(a) All income resulting from the incident;

(b) All income from alternative employment or business undertaken;

(c) Potential income from alternative employment or business not undertake, but reasonably 

available;

(d) Any saved overhead or normal expenses not incurred as a result of the incident; and

(e) State, local, and Federal taxes.

DETERMINATION OF LOSS 

Claimant’s Submission to the OSLTF

To support this claim, the Claimant submitted the following documentation:

• Handwritten claim cover letter, 20 February 2012;

• Optional OSLTF Claim Form, signed on 20 February 2012;

• Letter from the Claimant to the GCCF requesting re-review of claim submission, 27 

January 2012;

• Notice of Emergency Advance Payment Determination, Waterscape Condominium 

Owners Association, with attached copy of check for payment by the GCCF totaling 

$51,200.00;

• Letter from the Claimant to the GCCF, 20 August 2011;

• Letter from the Claimant describing June to September 2010 losses;

• Chart showing 2008 through September 2010 average paying occupancy percentage by 

month;

• Booking records, 12/26/08 through 12/26/09;

• 2009 Schedule E, Form 1040;

• Booking records, 12/29/09 through 1/1/2011;

• 2010 Schedule E (Form 1040);

• Statutory Warranty Deed regarding Unit A626, Waterscape, signed on 11 January 2008;

• Letter from the Claimant to the GCCF, 24 May 2011;
• Letter from the Claimant to the GCCF, 3 March 2011;

• Letter from the GCCF to the Claimant, 31 January 2011;

• 2010 Form 1099-MISC, showing $22,872.83;

• Year end owner summary for the year ending 2010, Resortquest;

• GCCF Claim Form, signed on 18 October 2010;

• Document from the Claimant noting both Real or Personal Property damage as well as 

Lost Earnings or Profits;

• Document describing real or personal property losses;

• MLS Listing with sales data for comparable properties;

• Document describing lost earnings or profits.

On October 25, 2010, the Claimant submitted two Final Payment claims to the RP/GCCF, 

seeking both loss of profits damages totaling $5,116.00 as well as real or personal property 

damages totaling $78,500.00.4

 The Claimant was assigned Claimant ID 7194252 and the claims 

were collectively assigned claim # 9075727.5

 The GCCF denied the Claimant’s real or personal 

property claim, and found that the Claimant had not sustained a loss with regards to the 

Claimant’s loss of profits claim.6

On 29 February 2012, the Claimant submitted this claim to the NPFC, seeking $5,116.00 in loss 

of profits and impairment of earning capacity damages.7

 OPA requires that a Claimant first 

present a claim for costs or damages to the RP prior to presentment to the NPFC.8

 Should the 

RP deny full payment on the claim, or fail to issue a determination within 90 days of presentment 

by the Claimant, the NPFC may adjudicate and issue a determination on the claim.9 Because this 

claim for $5,116.00 has first been presented to and denied by the RP/GCCF, the NPFC may 

properly adjudicate the entirety of this claim for $5,116.00 in loss of profits damages.

NPFC Determination

Under 33 U.S.C. § 2702(b)(2)(E) and 33 C.F.R. Part 136, a claimant must prove that any loss of 

income was due to injury, destruction or loss of real or personal property or of a natural resource 

as a result of a discharge or substantial threat of a discharge of oil. Under 33 C.F.R. § 136.105(a) 

and § 136.105(e)(6), the claimant bears the burden of providing to the NPFC all evidence, 

information, and documentation deemed necessary by the Director, NPFC, to support this claim.

In order to prove a claim for loss of profits damages, a claimant must provide documentation 

sufficient to prove (1) that the claimant sustained an actual financial loss, and (2) that the loss 

was caused by the discharge of oil resulting from the Deepwater Horizon oil spill.

Documentation initially provided by the Claimant is not sufficient to prove that the Claimant lost 

a particular amount of profit as a result of the Deepwater Horizon oil spill. In order to gather 

additional information in support of this claim, the NPFC contacted the Claimant via a letter 

dated 23 March 2012, requesting certain substantiating documentation.

4 GCCF United States Coast Guard Report, 17 April 2012.

5 GCCF United States Coast Guard Report, 17 April 2012.

6 GCCF United States Coast Guard Report, 17 April 2012.

7 Optional OSLTF Claim Form, signed on 20 February 2012.

8 33 C.F.R. § 136.103(a). 9 33 C.F.R. § 136.103(a).

 
The NPFC requested that the Claimant provide records of any and all cancelled reservations in 

the period following the spill. The NPFC requested that the Claimant also provide evidence to 

show that the cancellations were caused by the spill and not by other factors. 

Furthermore, in order to prove that the Claimant’s rental income in 2011 increased along with 

the corresponding tourism increases in Okaloosa and Fort Walton,10 the NPFC requested that the 

Claimant provide 2011 booking records similar to the records provided by the Claimant for 2009 

and 2010. Because the Claimant did not own the unit in 2008, such records would also serve as 

evidence that 2010 bookings dropped as compared to bookings in same period of 2009 and 2011.

Furthermore, because OPA only allows for compensation for loss of profits and not loss of 

revenue,

11 the NPFC requested that the Claimant provide monthly profit and loss statements, 

showing the amount of profit actually generated on the rental unit.

On 4 April 2012, the Claimant responded to the NPFC via email, stating that he would not 

respond to the request for additional information.12 

Documentation provided in the Claimant’s original claim submission fails to prove that the 

Claimant sustained a certain amount of lost profits as a result of the Deepwater Horizon oil spill. 

Should the Claimant choose to pursue this claim on reconsideration, the Claimant must provide 

the documentation requested in the 23 March 2012 request for additional information.

This claim is denied because the Claimant failed to meet his burden to demonstrate (1) that he 

sustained a loss of profits in the amount of $5,116.00, and (2) that the alleged loss is due to the 

injury, destruction or loss of property or natural resources as a result of a discharge or substantial 

threat of a discharge of oil.

Claim Supervisor: NPFC Claims Adjudication Division

Date of Supervisor’s Review: 4/27/12

Supervisor’s Action: Denial approved

Supervisor’s Comments:

10 See e.g., WMBB NEWS, Northwest Florida Tourism Experiences a Record Summer, 16 September 2011, 

available at, http://www.wmbb.com/story/15386358/northwest-florida-toursim-experiences-a-recordsummer?clienttype=printable, Accessed on 26 April 2012. 11 33 C.F.R. § 136.235. 12 Email from the Claimant to the NPFC, Subject: Claim #N10036-1699.