CLAIM SUMMARY / DETERMINATION FORM

Claim Number N10036-1463

Claimant Jan Kinkella

Type of Claimant Private (US)

Type of Claim Loss of Profits and Impairment of Earnings Capacity

Amount Requested $10,000.00

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 28 September 2011, Jan Kinkella (Claimant) presented an optional Oil Spill Liability Trust 

Fund (OSLTF) claim form seeking $10,000.00 for loss of profits and impairment of earnings 

capacity to the National Pollution Funds Center (NPFC) alleging damages resulting from the 

Deepwater Horizon oil spill. 

The Claimant worked as a cook for AJ’s Seafood from February 2010 through 20 August 2010.1

The Claimant asserted that the restaurant could not get seafood and nobody wanted to eat 

seafood as a result of the Deepwater Horizon oil spill.

2 Thus her company terminated her 

employment. 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 Writing on paystubs from AJ’s Seafood Restaurant, INC. 

2 Optional OSLTF claim form undated.

3 Optional OSLTF claim form undated. 

 
(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 her claim, the Claimant submitted:

1) Optional OSLTF claim form undated;

2) Paystubs from AJ’s Seafood Restaurant, INC. dated 05 February 2010, 12 February 2010, 

and 20 August 2010.

Claimant seeks lost profits and impairment of earnings capacity in the amount of $10,000.00.

On 04 October 2011, the NPFC sent a letter to Claimant requesting additional information in 

order to further evaluate the claim. The Claimant did not respond to the request. The letter was 

sent Certified Mail Return Receipt Requested. The USPS Tracking site showed the letter was 

delivered 17 October 2011.4

 

4 USPS #7011 1150 0000 4636 3004.

 
Prior to presenting her claim to the NPFC, Claimant filed an Emergency Advance Payment 

(EAP) with the GCCF on 04 November 2010 in the amount of $12,000.00.5

 She was assigned 

Claimant ID #3353968 and claim #415056. This claim was denied on 15 December 2010.6

Additionally, the Claimant filed an Interim claim (ICQ12011) with the GCCF on 04 January 

2011 in the amount of $12,000.00.

7

 The claim was assigned GCCF #9144954.

8

 As of the date 

of this determination claim ICQ12011 is currently under review by the GCCF.9

 

Based upon the evidence provided by the Claimant, it appears that the subject matter for each of 

the GCCF claims is the same as the subject matter of her claim before the NPFC, i.e., that she 

lost her job and earnings as a result of the Deepwater Horizon oil spill. The NPFC deems each 

of Claimant’s two submitted GCCF claims to be properly presented to the responsible party and 

properly presented to the NPFC. Accordingly, this Claim Summary determination for NPFC 

Claim N10036-1463 considers and addresses the earnings claimed in both of the claims 

presented to the responsible party, specifically; GCCF Claim #’s 415056 (EAP) and 9144954 

(ICQ12011).

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 or destruction or loss of real or personal property or 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 the claim. 

The NPFC considered all the documentation submitted by the Claimant. 

In connection with a review of this claim, the NPFC sent the Claimant a letter requesting 

additional information in order to further evaluate her claim. 10 The letter requested, among other 

things, financial documentation for an accurate accounting of the Claimant’s losses, questions 

regarding causation of the alleged loss, and contact information for her employer. 11 The letter

was sent on 04 October 2011.12 On 17 October 2011, the Claimant acknowledged receipt of the 

letter.

13 However, to date no response has been received by the NPFC. 

As such, the Claimant has provided no documentation besides her assertion that she was 

terminated14 and three paystubs15 to substantiate her alleged loss of profits and impairment of 

earnings capacity or to show that her alleged loss of earnings was due to the Deepwater Horizon 

oil spill. Accordingly the Claimant has not established her sum certain as presented to the NPFC 

or that the alleged loss of earnings was due to the Deepwater Horizon oil spill by a 

preponderance of the evidence. 

5 Report from the GCCF dated 02 November 2011. 

6 GCCF Denial Letter dated 15 December 2010. 7 Report from the GCCF dated 02 November 2011 and GCCF online status report.

8 Report from the GCCF dated 02 November 2011 and GCCF online status report. 

9 Report from the GCCF dated 02 November 2011. 

10 NPFC request for additional information dated 04 October 2011. 11 NPFC request for additional information, USPS 7011 1150 0000 4636 3004. 12 USPS 7011 1150 0000 4636 3004. 13 USPS 7011 1150 0000 4636 3004. 14 Optional OSLTF claim form. 15 Paystubs from AJ’s Seafood Restaurant Inc. dated 05 February 2010, 12 February 2010, and 20 August 2010. 

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

has an alleged loss in the amount claimed, and (2) that her 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: 11/8/11

Supervisor’s Actions: Denial approved

Supervisor’s Comments: