CERTIFIED MAIL-RETURN RECEIPT REQUESTED 5890/DWHZ 

Number: 7011 1570 0001 4802 7033 28 October 2011 

 

Dan Kelly Trim & Woodworking, Inc. 

Attn: Dan Kelly

965 Marge Lane 

Molino, Florida 32577 

Re: Claim Number: N10036-1402 

Dear Mr. Kelly:

The National Pollution Funds Center (NPFC) in accordance with the Oil Pollution Act of 1990, 33 U.S.C. 

§ 2701 et seq. (OPA) and the associated regulations at 33 C.F.R. Part 136, denies payment on your claim 

number N10036-1402 involving the Deepwater Horizon oil spill. Please see the enclosed Claim 

Summary/Determination Form for further explanation. 

You may make a written request for reconsideration of this claim. The reconsideration must be received 

by the NPFC within 60 days of the date of this letter and must include the factual or legal basis of the 

request for reconsideration, providing any additional support for the claim. If, however you find that you 

will be unable to gather particular information within the time period, you may include a request for an 

extension of time for a specified duration with your reconsideration request. 

Reconsideration of the denial will be based upon the information provided. A claim may be reconsidered 

only once. Disposition of that reconsideration in writing will constitute final agency action. Failure of 

the NPFC to issue a written decision within 90 days after receipt of a timely request for reconsideration 

shall, at the option of the claimant, be deemed final agency action. All correspondence should include 

claim number N10036-1402. 

Mail reconsideration requests to:

Director (ca)

NPFC CA MS 7100 

US COAST GUARD

4200 Wilson Blvd, Suite 1000 

Arlington, VA 20598-7100 

Sincerely,

Claims Adjudication Division 

National Pollution Funds Center

U.S. Coast Guard 

Enclosures: (1) Claim Summary/Determination Form 

U.S. Department of 

Homeland Security

United States

Coast Guard

Director

United States Coast Guard

National Pollution Funds Center 

NPFC CA MS 7100

US COAST GUARD

4200 Wilson Blvd., Suite 1000 

Arlington, VA 20598-7100 

Staff Symbol: (CA) 

Phone: 

E-mail: @uscg.mil

Fax: 202-493-6937
CLAIM SUMMARY/DETERMINATION FORM

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 13 September 2011, Dan Kelly, on behalf of Dan Kelly Trim & Woodworking, Inc. (collectively, the 

Claimant) presented an Optional Oil Spill Liability Trust Fund (OSLTF) Claim Form to the National 

Pollution Funds Center (NPFC) seeking $10,358.00 in loss of profits and impairment of earnings capacity 

that allegedly resulted from the Deepwater Horizon oil spill.

The Claimant operates a carpentry business and works as a subcontractor in the Gulf Shores, Alabama 

region.1

 The Claimant asserted that due to the Deepwater Horizon oil spill, the general contractor that the 

Claimant obtains his primary construction projects from, Larry Newell General Contracting suffered a 

reduction in demand for housing and other construction.2

 By extension, the Claimant asserted that the 

reduction in construction projects reduced the demand for his carpentry services, which eventually 

resulted in a loss of income for the Claimant.3

The Claimant provided the following explanation for the calculation of his sum certain of $10,358.00: the 

Claimant stated that he took his gross income4 in 2009 ($26,276.00) and subtracted it from his gross 

income in 2010 ($15,918.00).5

 The difference, $10,358.00 became the Claimant’s sum certain.6

APPLICABLE LAW

The Oil Pollution Act of 1990 (OPA) provides that each responsible party for a vessel or facility from

which oil is discharged into or upon the navigable waters or adjoining shorelines or exclusive economic 

zone is liable for removal costs and damages. 33 U.S.C. § 2702(a). Damages include the loss of profits 

1 PHONECON between the NPFC and the Claimant dated 15 September 2011.

2 PHONECON between the NPFC and the Claimant dated 15 September 2011. 3 PHONECON between the NPFC and the Claimant dated 15 September 2011.

4 The NPFC notes that the Claimant utilizes the gross income listed on the Claimant’s 2009 and 2010 Form 1120S 

Federal Tax Returns, respectively. However, the Claimant’s own profit and loss spreadsheet included in the 

submission to the NPFC shows total gross revenue in 2010 as $15,944.78 rather than the $15,918.00 listed on the 

Claimant’s 2010 Form 1120S Federal Tax Return. Nevertheless, because the Claimant utilizes the gross revenue as 

reported in his tax return in the calculation of his sum certain, the NPFC will address the Claimant’s losses using the 

submitted sum certain of $10,358.00.

5 Letter from the Claimant to the NPFC dated 04 October 2011.

6 Letter from the Claimant to the NPFC dated 04 October 2011.

Claim Number N10036-1402

Claimant Dan Kelly Trim & Woodworking, Inc. 

Type of Claimant Business

Type of Claim Loss of Profits and Impairment of Earnings Capacity

Amount Requested $10,358.00

 
or impairment of earning capacity due to the injury, destruction or loss of real property, personal property, 

or natural resources, which shall be recoverable by any claimant. 33 U.S.C. §2702(b)(2)(E).

The OSLTF, which is administered by the NPFC, is available to pay claims for uncompensated damages

pursuant to 33 U.S.C. § 2712(a)(4) and § 2713 and the OSLTF claims adjudication regulations at 33 

C.F.R. Part 136. With certain exceptions a claim must first be presented to the responsible party. 33 

U.S.C. § 2713(a). If the claim is either denied or not settled by any person by payment within 90 days 

after the date on which it was presented, the claimant may elect to commence an action in court or present 

the claim to the OSLTF. 33 U.S.C. § 2713(c).

Pursuant to the claims regulations, 33 C.F.R. § 136.233, a claimant must establish the following to prove 

loss of profits or impairment of earning capacity:

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

(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 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 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 undertaken, 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

The Claimant’s Submission to the OSLTF

In support of his claim, the Claimant presented the following documentation to the NPFC:

- Optional OSLTF Claim Form, dated 2 September 2011;

- GCCF Full Review Final Payment Claim Form;

- Report from Oxford Economics titled ‘Potential Impact of the Gulf Oil Spill on Tourism’;

- Page 1 of 2008 Form 1120S Federal Tax Return;

- Page 1 of 2009 Form 1120S Federal Tax Return;
- Page 1 of 2010 Form 1120S Federal Tax Return;

- Hand-written monthly profit statements for the period January 2008-May 2011;

- GCCF Denial Letter dated 19 July 2011;

- GCCF Appeal Form;

- GCCF Denial Letter dated 13 August 2011;

- GCCF Ineligible Appeal Letter dated 18 August 2011;

- Letter from the Claimant dated 04 October 2011;

- Bank statements from Regions Bank for period: 01 January 2008-31 December 2008; 01 January 

2009 -31 December 2009, 01 January 2010-31 December 2010;

- 2008 Form 1120S Federal Tax Return;

- 2009 Form 1120S Federal Tax Return;

- 2010 Form 1120S Federal Tax Return.

Prior to presenting this Claim to the NPFC, the Claimant filed a Full Review Final (FRF) Claim with the 

GCCF for loss of profits and impairment of earnings capacity on 13 July 2011 in the amount of 

$18,122.55.7

 The Claimant was assigned Claimant ID # 1628188 and Claim ID # 9416283. The FRF 

Claim was denied on 13 August 2011.8

Based upon the evidence provided by the Claimant, it appears that the subject matter for the Claimant’s 

GCCF claim is the same as the subject matter of Claimant’s claim before the NPFC, i.e., that due to the 

Deepwater Horizon oil spill, the demand for the Claimant’s carpentry business plummeted, and as a result 

the Claimant suffered reduced income. The NPFC deems the Claimant’s GCCF claim to be properly 

presented to the RP and properly presented to the NPFC. Accordingly, this Claim Summary 

Determination for NPFC Claim N10036-1402 considers and addresses the earnings claimed in the claim 

presented to the responsible party up to $10,358.00 specifically; GCCF Claim # 9416283 (FRF).

NPFC Determination

The claim is denied. 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 documentation presented by the Claimant.

The claim is denied because the Claimant has not proven his alleged loss in the amount of $10,358.00 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. The Claimant failed to prove a connection between the Deepwater 

Horizon oil spill and any alleged loss to his carpentry business. 

The Claimant asserted that the Deepwater Horizon oil spill resulted in a reduction in demand for housing 

and other construction in the Gulf Shores, Alabama region.9

 Specifically, the Claimant asserted that the 

reduction in demand for housing construction caused the general contractor that the Claimant obtained 

work from, Larry Newell General Contracting, to lose existing construction contracts.10 The Claimant, 

however, failed to provide evidence to support his assertion. The Claimant failed to provide documentary 

evidence that any customer cancelled, rescinded or abandoned any existing contract with his carpentry 

business. 

Nevertheless, the NPFC attempted to verify the assertions submitted by the Claimant in his original 

submission to the NPFC. The NPFC contacted Larry Newell General Contracting (Newell Contracting) 

regarding the cancelled contracts that the Claimant asserted he suffered as a result of the oil spill. In a 

7 Report from the GCCF dated 06 October 2011.

8 GCCF Denial Letter dated 13 August 2011.

9 PHONECON between the NPFC and the Claimant dated 15 September 2011.

10 PHONECON between the NPFC and the Claimant dated 15 September 2011.

 
subsequent conversation with Newell Contracting, the NPFC was informed that there was only one 

potential construction project that was affected by the Deepwater Horizon oil spill.11 Newell Contracting 

stated that this was a reconstruction project for Cotton’s Restaurant in Orange Beach, Alabama.12 The 

NPFC was informed that this contract, however, did not contain the Claimant as a party to the agreement. 

Rather, the contract was only between Newell Contracting and Cotton’s Restaurant.13 Furthermore, 

Newell Contracting stated that there was never a contract between the Claimant and Newell Contracting 

regarding the Claimant’s subcontracting work on the project.14 Regarding other potential construction 

projects, Newell Contracting stated that no other projects had gone past the permitting stage, making it 

impossible to determine what the Claimant’s responsibilities regarding those projects would have been.15

Additionally, on 19 September 2011, the NPFC requested additional information from the Claimant to 

fully evaluate the claim and specifically to determine the effect of the Deepwater Horizon oil spill on the 

Claimant’s carpentry business.16 The NPFC requested that the Claimant provide all customer 

cancellations for 2010 due to the Deepwater Horizon oil spill, contact information for customers that 

cancelled orders in 2010 including names, addresses and telephone numbers and contracts for work 

between the Claimant’s business and any general contractor involving a cancelled contract due to the 

Deepwater Horizon oil spill.17

To date, the NPFC has not received any of the above listed documentation, including evidence of a 

contract between the Claimant and Newell Contracting or between Cotton’s Restaurant and Newell 

Contracting. Further, in a letter to the NPFC, the Claimant stated that, “I cannot give an estimate or an 

exact number of cancellations because my work is not scheduled as such; when the contractor calls I 

show up.18 I won’t know how many people decided to hold off having work done or how many people 

decided not to come here at all because of the oil spill.”19

Furthermore, the Claimant fails to provide evidence that he suffered a financial loss due to the Deepwater 

Horizon oil spill at all. Despite the purported loss of the construction project with Cotton’s Restaurant, 

the Claimant failed to articulate exactly how he suffered a loss regarding it. In addition to the lack of an 

existing contract between the Claimant and Newell Contracting, the Claimant failed to provide specific 

financial information regarding his agreed-upon price for completing the project, the costs involved in the 

project, and the projected net income that the Claimant was to generate from the project. Accordingly, 

the Claimant failed to prove a specific financial loss as a result of the purported loss of the construction 

project involving Cotton’s Restaurant.

Moreover, although the Claimant asserted that his business suffered reduced income due to the Deepwater 

Horizon oil spill, an analysis of the Claimant’s financial data shows that the period January 2009-April 

2009; the Claimant had a gross income of $9,151.60.20 During the equivalent period in 2010, the 

Claimant’s business had a gross income of $3,825.00.21 Thus, from equivalent periods not affected by the 

oil spill, the Claimant’s business showed a negative growth trend of 12.54%. Accordingly, the Claimant 

failed to prove a reduction in business income isolated to the Deepwater Horizon oil spill. 

11 PHONECON between the NPFC and Larry Newell General Contracting dated 17 October 2011. 12 PHONECON between the NPFC and Larry Newell General Contracting dated 17 October 2011. 13 PHONECON between the NPFC and Larry Newell General Contracting dated 17 October 2011. 14 PHONECON between the NPFC and Larry Newell General Contracting dated 17 October 2011. 15 PHONECON between the NPFC and Larry Newell General Contracting dated 17 October 2011. 16 Letter from the NPFC to the Claimant Requesting Additional Information dated 19 September 2011. 17 Letter from the NPFC to the Claimant Requesting Additional Information dated 19 September 2011. 18 Letter from the Claimant to the NPFC dated 04 October 2011. 19 Letter from the Claimant to the NFPC dated 04 October 2011. 20 Hand-written monthly profit statements for the period January 2008-May 2011. 21 Hand-written monthly profit statements for the period January 2008-May 2011.

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

alleged loss in the amount claimed, 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 Review: 10/28/11

Supervisor’s Actions: Denial approved

Supervisor’s Comments: