CLAIM SUMMARY/DETERMINATION FORM

Claim Number N10036-1473

Claimant Ms. Daffalyn Duplessis

Type of Claimant Private (US)

Type of Claim Loss of Profits and Impairment of Earnings Capacity

Amount Requested $5,000.00

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 October 6, 2011, Ms. Daffalyn Duplessis (the Claimant) presented a claim to the Oil Spill 

Liability Trust Fund (OSLTF) seeking $5,000.00 in loss of profits and impairment of earnings 

capacity that allegedly resulted from the Deepwater Horizon oil spill. 1

At the time of the oil spill, the Claimant was working at the Bergeron’s New Orleans Food and 

Sprits Company.2 The Claimant alleged that she sustained a loss of wages totaling $5,000.00 

due to a reduction in her employment hours following the Deepwater Horizon oil spill.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.

(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 

1 Optional OSLTF Claim Form, postmarked 26 September 2011. 

2 Optional OSLTF Claim Form, postmarked 26 September 2011.

3 Optional OSLTF Claim Form, postmarked 26 September 2011.

 
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:

• Optional OSLTF Claim Form, posted 27 September 2011 and Personal Statement

• Payroll Journal dated October 21, 2010

• Payroll stubs for October 3 thru 9, 2010; October 10 thru 16, 2010; and October 17 thru 

23, 2010

• Form W-2 Wage and Tax Statements for 2009 and 2008

• Form 1040 A Tax Returns for 2009 and 2008

• Menus for the New Orleans Food and Spirit restaurant

Prior to presentment to the NPFC, the Claimant presented an Emergency Advance Payment 

claim (EAP) to the RP/GCCF, seeking an unspecified amount in loss of profits and impairment 

of earnings capacity.4

 The Claimant was assigned claimant ID 3149837 and the EAP claim was 

assigned Claim # 214312. The EAP claim was denied on 6 April 2011.5

The Claimant then presented an Interim Payment (ICQ12011) claim and a Full Review Final 

(FRF) claim to the RP/GCCF of unspecified amounts. The ICQ12011 claim was assigned Claim 

# 9195158 and FRF claim was assigned 9046296. The RP/GCCF denied both claims.6

On 06 October 2011, the Claimant presented this claim to the NPFC, seeking $5,000.00 in loss 

of profits and impairment of earnings capacity. 7 This NPFC determination addresses this claim 

4 GCCF Claimant Status, accessed on 8 October 2011.

5 Emergency Advance Payment Determination, 6 December 2010.

6 Denial Letter on Interim Payment/Final Payment Claim, 6 April 2011.

7 Optional OSLTF Claim Form, dated 9 September 2011.

 
in the amount of $5,000.00 to the extent that that amount was previously presented in the 

Claimant’s EAP, ICQ12011, and FRF claims. Any amounts claimed now before the NPFC 

which were not first presented to the RP/GCCF are denied for improper presentment.8

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 and impairment of earnings capacity, a claimant must 

demonstrate (1) that she sustained an actual loss or reduction in income, and (2) that any loss of 

income sustained by a Claimant was caused by effects of the Deepwater Horizon oil spill. 

The Claimant alleged that she sustained a loss of income because her hours of employment were 

reduced when her employer, New Orleans Food and Spirits, incurred business losses following 

the Deepwater Horizon oil spill.9 The Claimant provided payroll statements for work periods in 

April 2010 and October 2010 as documentation to support her claim. The Claimant also 

provided copies of returns for tax years 2009 and 2008. The documents provided indicated that 

the Claimant’s annual income increased between 2008 and 2009 and that her income appeared to 

decrease for the period from 1 January 2010 through 23 October 2010. However, the documents 

do not substantiate that the Claimant’s decrease in employment hours and attendant income 

diminution were caused by the discharge or substantial threat of discharge of oil resulting from 

the Deepwater Horizon oil spill. Furthermore, the Claimant has not provided information which 

supports her claimed loss of $5,000.00. 

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

sustained a loss in profits in the amount of $5,000.00, 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: 10/11/11

Supervisor’s Action: Denial approved

Supervisor’s Comments:

8 33 C.F.R. 133.103(a). 9 See Claimant’s Personal Statement