CLAIM SUMMARY/DETERMINATION FORM

Claim Number N10036-1659

Claimant 

Type of Claimant Private (US)

Type of Claim Loss of Profits and Impairment of Earning Capacity

Amount Requested $14,125.02

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 26 January 2012 attorney Michael R. Herron, Esq., on behalf of Mr. Kirk Milliren, (collectively, 

the Claimant) presented a claim to the Oil Spill Liability Trust Fund (OSLTF) seeking $14,125.02 in 

loss of profits and impairment of earning capacity damages resulting from the Deepwater Horizon oil 

spill.1

From 28 November 1988 to present, the Claimant has been employed as a server at a Red Lobster 

franchise located in Hillsborough County, Florida. 2 The Claimant alleged that following the oil spill, 

“tourists avoided the area due to the threat of oil on the beaches,” and “people did not want to eat 

local seafood due to possibility of contamination.”3

 

The Claimant alleged to have lost $4,708.34 in wages and tips in 2010 due to (1) a decrease in 

tourism in Hillsborough County, as well as (2) a general decline in business caused by the perception 

that seafood was contaminated by the oil spill. The Claimant calculated his damages by subtracting 

his 2010 earnings from his 2008 earnings, and then multiplying the difference by three in order to 

reach his sum certain amount of $14,125.02.4

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 § 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 30 November 2011.

2 Letter from the Claimant’s employer, confirming employment dates, 10 May 2011.

3 Optional OSLTF Claim Form, signed on 30 November 2011.

4 Optional OSLTF Claim Form, signed on 30 November 2011.

 
(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:

• Optional OSLTF Claim Form, signed on 10 September 2011;

• Legal Representation Agreement;

• Letter from the Claimant’s employer, verifying employment from 28 November 1988 to 10 

May 2011;

• Letter from Adriana Urbina, 21 August 2011;

• Letter from Katrina Ooms, 22 August 2011;

• Letter from the Claimant, undated;

• 2010 W-2 Wage and Tax Statement, showing yearly earnings of $23,742.30;

• 2008 W-2 Wage and Tax Statement, showing yearly earnings of $28,450.64;

• Pay documentation, 6 May 2011;

• Pay Stubs, 2010;

• 2010 Form 1040, showing wages of $23,742.00;

• 2010 Schedule E (Form 1040);

• 2010 Schedule F (Form 1040);

• 2010 Form 4562;

• Handwritten profit and loss statement regarding farming operations;

• 2008 Form 1040 showing earnings of 28,451.00;

• 2008 Schedule A (Form 1040);

• 2008 Schedule E (Form 1040);

• 2008 Schedule F (Form 1040);
• 2008 Form 4562;

• Oxford Economics, Potential Impact of the Gulf Oil Spill on Tourism;

• Cover letter, response to NPFC request for additional information, 15 March 2012;

• Letter regarding the Claimant’s earnings in 2009;

• 2009 Form W-2 Wage and Tax Statement, showing earnings of $24,835.04;

• 2009 Form 1040, showing wages of $24,835.00;

• 2009 Schedule A (Form 1040);

• 2009 Schedule D (Form 1040);

• 2009 Schedule E (Form 1040);

• 2009 Schedule F (Form 1040);

• 2009 Form 4562;

• 2009 Schedule M (Form 1040A or 1040);

• Wage Compensation Report, 30 December 2007 – 25 December 2009.

On 8 February 2011, the Claimant presented a First Quarter Interim Claim (ICQ12011) to the 

RP/GCCF, seeking loss of profits and wages damages in the amount of $4,600.00.5

 The Claimant 

was assigned Claimant ID # 3483729 and the ICQ12011 was assigned claim # 9186146.6

 The 

RP/GCCF denied payment on this claim.

On 16 May 2011, the Claimant submitted a Full Review Final (FRF) claim to the RP/GCCF, seeking 

loss of profits and wages damages in the amount of $8,413.86. 7

 The FRF claim was assigned claim # 

9186165 and was also denied.8

 The total amount of damages previously presented by the Claimant 

to the RP/GCCF in the Claimant’s ICQ12011 and FRF claims, total $13,013.86.

On 26 January 2012, the Claimant submitted this claim to the NPFC, seeking $14,125.00 in loss of 

profits and impairment of earning capacity damages.9 The NPFC may adjudicate this claim to the 

extent that these damages have first been presented to the RP/GCCF.10 Because the amount of 

damages now presented to the NPFC, exceeds the amount of damages presented to the RP/GCCF by 

$1,111.16, this claim is initially denied in this amount.11 Therefore, the remainder of this 

determination shall address this claim for $13,013.86 in damages, as properly first presented to the 

RP/GCCF.

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.

5 GCCF United States Coast Guard Report, 16 February 2012.

6 GCCF United States Coast Guard Report, 16 February 2012.

7 GCCF United States Coast Guard Report, 16 February 2012.

8 GCCF United States Coast Guard Report, 16 February 2012.

9 Optional OSLTF Claim Form, signed on 30 November 2011. 10 33 C.F.R. § 136.103(a). 11 33 C.F.R. § 136.103(a).

 
1. Failure to demonstrate an actual financial loss.

The Claimant alleged that due to the Deepwater Horizon oil spill, he sustained a loss of tips and 

wages totaling $14,125.02.12 The Claimant’s alleged damage amount was computed by subtracting 

his 2010 earnings from his 2008 earnings and “multiplying by 3 for future damages.”13 As noted 

above, $1,111.16 of this claim is denied for improper presentment. 14

As an initial matter, the NPFC notes that prospective future damages are not compensable under 

OPA’s loss of profits damage category, which limits potentially available compensation to “the 

actual net reduction or loss of earnings or profits suffered” [emphasis added].15 Therefore, any 

amount of this claim that alleges future losses not actually incurred by the Claimant is denied. The 

remainder of this determination shall therefore address the actual difference between the Claimant’s 

2010 and 2008 income, of $4,708.34. 16 

Regarding the Claimant’s alleged actual losses in 2010, the Claimant has failed to demonstrate that in 

2010, his wage and tip earnings were on track to match his 2008 earnings. Rather, according to the 

Claimant’s pay stubs, his 2008 income from January to May 2008 was approximately 31% higher 

than his income from January to May 2010.17 Therefore, it appears that the Claimant’s 2010 income 

in the months prior to the oil spill was already significantly reduced as compared to 2008 levels.

Furthermore, relative to the Claimant’s pre-oil spill income in 2010, the Claimant’s post-oil spill 

income more closely matched the levels it reached in 2008. Overall, the Claimant’s yearly earnings 

in 2010 were only 20% off his 2008 earnings, indicating that his 2010 post-oil spill earnings were 

relatively improved as compared to 2010 pre-oil spill earnings.18

Because the Claimant’s income does not appear to have dropped in the period following the oil spill, 

but instead, remained steadily lower than 2008 levels, the Claimant has not proven that he sustained 

an actual financial loss in 2010 following the oil spill.

2. Failure to prove loss due to Deepwater Horizon oil Spill.

The Claimant alleged that his loss of wages and tips in 2010 was caused by (1) decreased tourism in 

Hillsborough County following the oil spill, and (2) reduced seafood sales as a result of fear of 

seafood contamination due to the spill.19

However, tourism statistics for Hillsborough County fail to clearly indicate that tourism decreased in 

2010 following the Deepwater Horizon oil spill. Furthermore, the Claimant has not provided any 

evidence to indicate if and to what extent this particular Red Lobster location actually depends on 

tourist customers. 

Regarding tourism statistics for Hillsborough County, although the overall number of visitors to the 

county decreased by an estimated 7.4% in 2010 as compared to 2009, overall visitor spending 

12 Optional OSLTF Claim Form, signed on 30 November 2011. 13 Optional OSLTF Claim Form, signed on 30 November 2011. 14 33 C.F.R. § 136.235. 15 33 C.F.R. § 136.235. 16 In Claimant’s response to NPFC’s request for additional information dated 08 March 2012, Claimant requested 

that the NPFC review his losses in light of Claimant’s 2008 earnings because Claimant “missed 7 weeks due to a 

non-work related injury” in 2009. 17 Pay stubs indicate that the Claimant earned approximately $10,609.87 from Jan-May 2008 and $8,076.75 from 

Jan-May 2010. 18 2008, 2010 pay stubs provided by the Claimant. 19 Optional OSLTF Claim Form signed on 30 November 2011.

 
increased by 10.5%.20 Furthermore, the number of overnight visitors staying in commercial lodging 

increased by 7.8% in 2010 over 2009.21 Although statistics indicate that 2010 saw an overall 

reduction in visitors, it also experienced an increase in the number of overnight visitors, as well as an 

increase in overall visitor spending. Therefore, county statistics fail to support the Claimant’s 

assertion that Hillsborough County sustained an overall reduction in tourism which caused Red 

Lobster to sustain a loss of sales. The Claimant has also not provided evidence to link the alleged 

decrease in tourism to the Deepwater Horizon oil spill.

 

Furthermore, the Claimant has failed to provide any evidence that the Red Lobster location where the 

Claimant was employed indeed lost seafood sales in the period following the Deepwater Horizon oil 

spill. In a letter to the Claimant dated 8 March 2012, the NPFC requested that the Claimant provide 

documentation regarding the extent of the business losses allegedly incurred by the Claimant’s 

employer as a result of the oil spill.22 The Claimant failed to adequately respond to this request,

stating that [w]e were unable to attach a letter from the employer as it is their company policy not to 

write letters regarding oil spill losses.”23 The NPFC attempted to contact management personnel at 

the Red Lobster location where the Claimant was employed, in order to garner additional information 

regarding possible losses incurred by the restaurant. However, restaurant management was 

unresponsive and would not provide any information to support this claim.24 Further, the letters 

allegedly written by fellow employees are unpersuasive in that they are unsigned, provide no 

information other than the same assertions made by the Claimant, and do not mention the Red 

Lobster restaurant.25

Based on the foregoing, the Claimant has failed to demonstrate that the oil spill caused a reduction in 

sales at the Red Lobster where the Claimant was employed, which caused the Claimant to sustain a 

loss of tips and wages. Furthermore, the Claimant has failed to provide any documentation to prove 

that any alleged loss of sales was caused by the oil spill.

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

that he sustained a loss in the amount of $14,125.02, 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: 4/2/12

Supervisor’s Action: Denial approved

Supervisor’s Comments: 

20 Analysis of 2010 Hillsborough County Visitor Key Findings, available at, 

http://www hillsboroughcounty.org/econdev/resources/publications/tourism/2010TourismVisitorStudySummary.pdf

. Accessed on 20 March 2010.

21 Id. 22 NPFC Request for additional information, 8 March 2012. 23 Cover Letter, Response to NPFC Request for additional information, 15 March 2012. 24 PHONECON: NPFC Staff and Red Lobster Management, 8 March 2012. 25 Letter dated 21 August 2011 from A. U. and letter dated 22 August 2011 from K. O.