CLAIM SUMMARY/DETERMINATION FORM

Claim Number N10036-1447

Claimant Mr. Brent J. Boudoin

Type of Claimant Private (US)

Type of Claim Loss of Profits and Impairment of Earning Capacity

Amount Requested $25,840.00

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 17 October 2011, Mr. Brent J. Boudoin (the Claimant) presented a claim to the Oil Spill Liability 

Trust Fund (OSLTF) seeking $25,840.00 in loss of profits and impairment of earnings capacity damages, 

allegedly resulting from the Deepwater Horizon oil spill.1

The Claimant owns a rental condominium in Gulf Shores, Alabama.2 The Claimant alleged that 

following the Deepwater Horizon oil spill, he had a significant number of rental cancellations, resulting in 

lost rental income in 2010.3

 The subject of this claim, however, is the Claimant’s loss of rental income 

from December 2010 through August 2011, during which, in spite of having no cancellations, the 

Claimant reported generally low bookings.4 Although the tourism in Gulf Shores was at an all-time high 

during the 2011 season, the Claimant alleged that the oil spill and other factors drove rental rates down to 

a level at which the Claimant was uncomfortable and unwilling to rent his property.5 

Specifically, the Claimant stated, “[m]any inquiries this season were to rent my unit for a discounted 

price, which was the norm throughout Orange Beach/Gulf Shores this summer. That was unacceptable to 

me since I believed I would still have to file a BP claim for the difference.”6

The Claimant therefore seeks compensation from the NPFC for lost rental income from December 2010 

to March 2011, in the amount of $25,840.00.7

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.

1 Optional OSLTF Claim Form, dated 3 August 2011. 

2 Optional OSLTF Claim Form, dated 17 September 2011.

3 Condo Rental Record, 2010; GCCF Claimant Status, accessed on 8 November 2011.

4 Response to request for additional information, received on 6 November 2011. 5 Response to request for additional information, received on 6 November 2011.

6 Response to request for additional information, received on 6 November 2011.

7 Optional OSLTF Claim Form, dated 17 September 2011.

 
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 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, dated 17 September 2011;

• Spreadsheet showing Condo Rentals, 2011;

• Alabama Department of Revenue, Sales and Use Tax Documentation, 2010, 2011;

• Response to request for additional information, received on 7 November 2011.

On 6 November 2010, the Claimant presented an Emergency Advance Payment (EAP) claim to the 

RP/GCCF, seeking loss of profits damages in the amount of $24,000.00.8

 The Claimant was assigned 

Claimant ID 1080281 and the EAP claim was assigned 425205. This claim was paid in the amount of 

$8,400.00.9

 

On 31 March 2011, the Claimant presented a First Quarter Interim Claim (ICQ12011) to the RP/GCCF, 

seeking loss of profits damages in the amount of $6,000.00. The ICQ12011 was assigned claim # 

9339927. The Claimant was found to have been fully compensated for alleged losses and was sent a final 

payment offer by the RP/GCCF, which the Claimant has not accepted as of the date of this letter.

On 8 July 2011, the Claimant presented a Third Quarter Interim Claim (ICQ32011) to the RP/GCCF, 

seeking loss of profits damages in the amount of $9,040.00. The ICQ32011 was assigned claim number 

9441980 and as with the ICQ21011, no payments were made on this claim, as the Claimant was found to 

have been fully compensated.

8 GCCF U.S. Coast Guard Report, 2 November 2011.

9 GCCF U.S. Coast Guard Report, 2 November 2011.

 
Prior to his dealings with the RP/GCCF, the Claimant received compensation from BP in the amount of 

$12,652.26, for total compensation of $21,052.26 paid to the Claimant by BP and the GCCF.10

On 17 October 2011, the Claimant presented this claim to the NPFC, seeking $25,840.00 in loss of profits 

and earnings capacity damages.11 The Claimant has presented claims for damages to the RP/GCCF in the 

amount of $39,040.00.12 Because these damages have been first presented to the RP/GCCF, the NPFC 

deems presentment of this claim to have been proper,13 and shall adjudicate the entirety of this claim in 

the amount of $25,840.00 as now before the NPFC.

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, a claimant must demonstrate (1) that he suffered an actual 

financial loss, and (2) that the loss was the direct result of the discharge or substantial threat of discharge 

of oil, caused by the Deepwater Horizon oil spill.

This claim is based on the Claimant’s loss of rental income from December 2010 until August 2011. 

However, research conducted by the NPFC indicates that the 2011 tourist season in Orange Beach had 

been a record setting season, with the Alabama Gulf Coast Convention & Visitors Bureau, reporting the 

highest condominium occupancy rates for any year from 2007 - 2011.14 

The Claimant has acknowledged that the season was successful in terms of the numbers of tourists 

traveling to Gulf Shores and Orange Beach,15 but has alleged that the oil spill affected the rental market 

by driving down rental prices, causing the Claimant to be unable to rent his unit at his desired price 

point.16 The Claimant stated that Gulf Shores and Orange Beach condominium owners’ “desire to return 

to renting is what drove prices down for the 2011 season,” resulting in the Claimant’s loss of rental 

income.17 However, upon researching rental rates of comparable units in the same condominium 

complex, it appears that the Claimant’s rental rates are consistent with and competitive within the Gulf 

Shores and Orange Beach market.18 Furthermore, tourism statistics indicate that in 2011, the average 

daily rental rate for condominiums in Gulf Shores and Orange Beach was higher than it had been in any 

year from 2007 – 2011.19 

The Claimant has not provided evidence or documentation to demonstrate that rental rates in fact dropped 

in 2011, or to show that the alleged drop was caused by the effects of the Deepwater Horizon oil spill. 

Therefore, the Claimant’s assertion that rental rates had been driven down to a point where the Claimant 

was unable to compete in the rental market has not been substantiated.

In a letter dated 20 October 2011, the NPFC requested certain additional information to support this 

claim, including evidence regarding the types of advertising methods used by the Claimant.20 The 

10 GCCF U.S. Coast Guard Report, 2 November 2011. 11 Optional OSLTF Claim Form, dated 17 September 2011. 12 $24,000.00 in EAP, $6,000.00 in ICQ12011, $9,040.00 in ICQ32011. 13 33 C.F.R. §136.103(a). 14 See, Tourism Report, www.agccvb.org/stats/, Accessed on 7 November 2011. 15 PHONECON: Claimant and NPFC Staff, 7 November 2011. 16 Response to request for additional information, received on 6 November 2011. 17 Response to request for additional information, received 6 November 2011. 18 See, e.g. ̧www.vrbo.com; (www.vrbo.com/search?q=Romar), Accessed on 8 November 2011. 19 Gulf Shores & Orange Beach Tourism, CONDOMINIUM OCCUPANCY SUMMARY, Gulf Shores & Orange 

Beach, Alabama, available at www.agccvb.org/stats, Accessed on 8 November 2011. 20 NPFC Request for Additional 

 
Claimant responded by stating that he relied on word-of- mouth advertising initiated by previous 

renters.21 Although the Claimant stated that he did market his property online in 2008 and 2009, he 

stopped in 2010 due to the oil spill, and has not yet relisted his rental condominium.22

Furthermore, it should be noted that the Claimant alleged to have “made significant upgrades to [the 

Claimant’s] unit during Fall 2010 and Spring 2011 . . . including new LG Kitchen Appliances, washer and 

dryer . . . slate floors, granite tops and waterfall faucets.”23 The Claimant has alleged that he lost rental 

income from December 2010 until August 2011. However, it is not clear that the Claimant’s unit was 

actually available for rent during the period in which the Claimant was renovating his condominium unit, 

in the spring of 2011.

Based on the foregoing, it appears that the Claimant’s alleged loss of rental income was caused by the 

Claimant’s restrictive rental practices and by the possible unavailability of the Claimant’s rental unit 

during periods of renovations, rather than due to effects of the Deepwater Horizon oil spill. This 

determination is based on publicly available tourism statistics, as well as on documentation contained in 

the Claimant’s submission to the NPFC.

 

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

loss in the amount of $25,840.00, 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: 11/8/11

Supervisor’s Action: Denial approved

Supervisor’s Comments: 

21 PHONECON: Claimant and NPFC Staff, 7 November 2011. 22 PHONECON: Claimant and NPFC Staff, 7 November 2011. 23 Response to request for additional information, received 6 November 2011.