CLAIM SUMMARY / DETERMINATION FORM

Claim Number : N10036-1568

Claimant : Eduardo Espinoza

Type of Claimant : Individual (US)

Type of Claim : Loss of Profits and Earning Capacity

Amount Requested : $41,372.79

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 16 November 2011, Eduardo Espinoza, (referred to as “the Claimant”) presented a claim to 

the Oil Spill Liability Trust Fund (OSLTF) for $41,372.00 in loss of profits and impairment of 

earnings capacity resulting from the Deepwater Horizon oil spill.1 This loss is associated with 

the loss of a single property rental, as well as with a lack of clientele for interpreting/translating 

services that did not materialize in 2010 because of impacts of the Deepwater Horizon oil spill.2

The Claimant owns a town house in Naples, Florida, which he rented to seasonal visitors 

beginning in 2009 and also acts as a self-employed interpreter and translator for French-, 

Spanish- and Portuguese-speaking vacationers to the Naples and Fort Myers area.3

 The 

Claimant is a citizen of Canada and United States Legal Resident Alien, with primary residence 

in Naples, Florida.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:

1

 Optional OSLTF Claim Form signed 7 November 2011 and received 16 November 2011. 2

 Claimant letter to NPFC dated 7 November 2011. 3

 Claimant letter to NPFC dated 7 November 2011 and Claimant Affidavit dated 5 November 2010. 4

 Claimant Affidavit dated 5 November 2010, U.S. (DHS) Permanent Resident Card A# 096-567-623 and Florida 

Driver License E215-205-63-060-0.

 
(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 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 

Claimant’s Submission to the OSLTF

To support this claim the Claimant presented a large amount of documentation, which is 

summarized in Enclosure (2).

Based upon the information received from the Claimant and independent verification by the 

NPFC, the Claimant presented two claims to the GCCF on 10 December 2010, both for 

$16,350.00, and was issued GCCF Claimant Identification # 7210257. 5

 On his Emergency 

Action Payment (EAP) Claim, GCCF Claim # 4033728 was issued and, on his GCCF Full 

Review Final Claim (FRF), GCCF Claim # 9069733 was issued. The NPFC also verified that 

both of these claims have been denied.6

Because the EAP and FRF claims presented to the RP/GCCF each were for a damage amount of

$16,350.00 and the damage amount presented to the NPFC was $41,372.79, the NPFC can be 

5

 Optional OSLTF Claim Form received 16 November 2011, GCCF Letter dated 13 December 2010, GCCF Denial 

Letter on Interim Payment/Final Payment Claim dated 22 April 2011, and GCCF – U.S. Coast Guard Report as of 

16 February 2012.

6

 GCCF Denial Letter on Interim Payment/Final Payment Claim dated 22 April 2011 and GCCF – U.S. Coast

Guard Report as of 16 February 2012

 
adjudicated only for the amount presented to the RP/GCCF.

7

 Amounts claimed to the NPFC in 

excess of $16,500.00 are denied for lack of proper presentation to the Responsible Party.8

Further, because the subject matter of the EAP and FRF claims appear to be based upon the same 

subject matter, i.e. loss of profits and earning capacity resulting from the loss of rental income 

and from the loss of interpreting and translating service fees, the NPFC deems this Claim 

Summary Determination as being outcome determinative for both of the Claimant’s prior GCCF 

claims.

The Claimant’s documentation includes correspondence with the GCCF, a number of affidavits 

and statutory declarations, two lease documents, tax forms for the years 2008, 2009 and 2010, a 

Canada passport, a Florida Driver License, and a U.S. (DHS) Permanent Resident Alien Card.

The Claimant provided documentation of a lease for his house during the period 1 May through 

31 August 2010.9

 The Claimant also provided documentation of a lease to another party during 

the period 1 December 2009 through 1 March 2010.10 A second part of the amount claimed is 

for the loss of income due to cancellation of the 1 May to 31 August 2010 lease allegedly due to 

the oil spill.11 

The Claimant states that his clients for interpreting and translating services are mostly French 

Canadian retirees visiting Southwest Florida during the winter and summer.12 He also states that 

some clients are from South America and Europe. The second component of the amount 

claimed is for loss of income due to a lack demand for interpreting and translating, due to the oil 

spill.13 

NPFC Determination

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. 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 has considered all documentation presented by 

the Claimant. 

This claim is denied because the Claimant has failed to prove (1) that he has incurred loss of 

profits or impairment of earnings capacity damages in the amount alleged and (2) that his alleged 

loss was due to the Deepwater Horizon spill.

(1) Failure to prove damages: 

The first element a claimant must prove in a lost profits or impairment of earnings capacity claim 

is that the claimant has incurred the alleged damages. Regarding the lost lease income, the 

7

 33 U.S.C. §136.103(a). 8

 33 U.S.C. §136.103(a). 9

 Residential Lease signed 1 May 2010 by Eduardo Espinoza and Mauro Gonzalez, for 7650 Bristol Circle, Naples, 

FL from 1 May to 31 August 2010.

10 Residential Lease signed 15 November 2009 by Eduardo Espinoza and Daniel Bouchard, for 7650 Bristol Circle, 

Naples, FL from 1 December 2009 to 1 March 2010.

11 Statutory Declaration by Mauro Gonzalez before attorney Stephanie Valois of the Quebec Bar on 7 September 

2011 (Original in French, with translation to English by Adrian J. Alpendre on 15 September 2011). 12 Notarized Affidavit of Eduardo E. Espinoza on 5 November 2010. 13 Notarized Affidavit of Eduardo E. Espinoza on 29 October 2010.

 
Claimant provided evidence of having leased his home prior to the oil spill, as well as a lease for 

the period 1 May to 31 August 2010. The Claimant also provided a notarized affidavit from the 

lessee indicating that he cancelled the lease.14 It is unclear, however, if the Claimant calculated 

lost profits from the cancelled lease on his house over a three-month or four-month period, 

beginning 1 May 1010. Further, the NPFC was unable to reach the lessee, who lives in 

Montreal, Quebec, to confirm the lease, to confirm if any payments were made on the lease, and 

to resolve the apparent discrepancy over the length of the lease.

Regarding the alleged loss relating to his translation services, the Claimant did not present 

evidence of historical income from his translation and interpreting business for specific clients 

but only annual income reported on taxes.

15 2009 income for translation was $39,110.0016 and 

2010 income was $4,176.00.

17 

One of the persons, whose notarized affidavit was provided, indicated that she is a realtor who 

normally had French Canadian seasonal customers in May through October (working class, 

summer vacationers) and January through April (snowbirds). Each season, she added, she hired 

the services of the Claimant, who is fluent in four languages.18 During a phone conversation

with this realtor, she stated that she normally paid the Claimant in cash, about $200 per hour for 

shorter engagements and, for one two-week engagement in 2009; she paid the Claimant 

$3,000.19 The Claimant stated that he received an hourly rate of $200 to $230 per hour.20 The 

Claimant did not provide documentation of any agreements with customers or real estate agents 

for 2010 engagements that were either completed or cancelled. The Claimant also stated that he 

accepted cash payments only and did not trust banks.21

In light of the above, the Claimant has failed to prove his damages because the documentation he 

has provided is insufficient in its ability to be authenticated.

(2) Failure to prove causation: 

The second element a claimant must prove in a lost profits or impairment of earnings capacity 

claim is that the alleged loss is due to the oil spill. Here, the Claimant provided a notarized 

statement from the lessee in that he cancelled the agreements they had previously with the 

Claimant “Due to the bad news coming from the oil spill incident in the Gulf of Mexico area”.

22 

The NPFC was unable to unable to reach the lessee, who lives in Montreal, Quebec, to confirm 

the reason for cancelling the lease, as well as how and when the cancellation was made.

Regarding the Claimant’s interpreting and translation service losses, no documentation has been 

provided to show that reductions in earnings for this business in 2010 were the result of the 

Deepwater Horizon oil spill, not other factors, such as general economic conditions.

The NPFC notes that its’ own independent investigation into the background of this claim 

reveals that the tourism in the Naples/Fort Meyer Florida area was not down overall between 

14 Statutory Declaration by Mauro Gonzalez before attorney Stephanie Valois of the Quebec Bar on 7 September 

2011 (Original in French, with translation to English by Adrian J. Alpendre on 15 September 2011).

15 2008, 2009 and 2010 Forms 1040 Schedule C for Eduardo Espinoza, Interpreter and Translation Services. 16 2009 Form 1040 Schedule C for Eduardo Espinoza, Interpreter and Translation Services. 17 2010 Form 1040 Schedule C-EZ for Eduardo Espinoza, Interpreter and Translation Services. 18 Notarized Affidavit of Linda Ester Tejada Arosemena on 27 October 2010. 19 Summary of phone conversation between Linda Tejada and NPFC Staff on 23 November 2011. 20 Summary of phone conversation between the Claimant and NPFC Staff on 9 January 2012. 21 Summary of phone conversation between the Claimant and NPFC Staff on 9 January 2012. 22 Statutory Declaration by Mauro Gonzalez before attorney Stephanie Valois of the Quebec Bar on 7 September 

2011 (Original in French, with translation to English by Adrian J. Alpendre on 15 September 2011).

 
2009 and 2010.23 The inability to verify specific cancellations submitted as evidence, coupled 

with the stability of the tourism markets, as indicated by the statistical evidence, leads the NPFC 

to conclude that the Claimant has not met his burden of proof on this claim.

Accordingly, this claim is denied for the following reasons: (1) the Claimant has failed to 

sufficiently demonstrate that he incurred damages in the amount alleged and (2) the Claimant has 

failed to demonstrate that the alleged loss is due to injury or destruction or loss of real or 

personal property or a natural resource as a result of a discharge or a substantial threat of a 

discharge of oil.

 

Claim Supervisor: NPFC Claims Adjudication Division

 

Date of Supervisor’s Review: 3/9/12

Supervisor’s Action: Denial approved

Supervisor’s Comments: 

23 Naples, Marco Island, Everglades Convention & Visitors Bureau Tourist Tax Collections History Calculated by 

Month Payed by Guests, dated 22 July 2011, 

http://www.paradisecoast.com/media center/research files/colliercountytouristdevelopmenttaxcollectionchart.pdf, 

last accessed 8 March 2012.

 
Enclosure (2)

Documentation Presented by Claimant

N10036-1568

Documentation provided by the Claimant

1. Optional OSLTF Claim Form signed 7 November 2011 and received 16 November 2011.

2. Claimant letter to NPFC dated 7 November 2011.

3. GCCF letter dated 13 December 2010.

4. GCCF Denial Letter on Interim Payment/Final Payment Claim dated 22 April 2011.

5. Notarized Affidavit of Eduardo E. Espinoza on 5 November 2010.

6. Notarized Affidavit of Linda Esther Tejada Arosemena on 27 October 2010.

7. Notarized Affidavit of Priscilla Bletterman on 12 September 2011.

8. U.S. Bank Home Mortgage statement to Eduardo Espinoza dated 20 October 2011 for 

property at 7650 Bristol Circle, Naples, FL.

9. Notarized Affidavit of Eduardo E. Espinoza on 29 October 2010.

10. Notarized Affidavit of Vincent Torres on 5 October 2011.

11. Statutory Declaration by Mauro Gonzalez before attorney Stephanie Valois of the 

Quebec Bar on 7 September 2011 (Original in French, with translation to English by 

Adrian J. Alpendre on 15 September 2011).

12. Statutory Declaration by Samuel Noo before attorney Stephanie Valois of the Quebec Bar 

on 5 September 2011 (Original in French, with translation to English by Adrian J. 

Alpendre on 15 September 2011).

13. Residential Lease signed 1 May 2010 by Eduardo Espinoza and Mauro Gonzalez, for 

7650 Bristol Circle, Naples, FL from 1 May to 31 August 2010.

14. Residential Lease signed 15 November 2009 by Eduardo Espinoza and Daniel Bouchard, 

for 7650 Bristol Circle, Naples, FL from 1 December 2009 to 1 March 2010.

15. 2010 Form 1040 Schedule C-EZ for Eduardo Espinoza, Interpreter and Translation 

Services.

16. 2009 Form 1040 Schedule C for Eduardo Espinoza, Interpreter and Translation Services.

17. 2008 Form 1040 Schedule C for Eduardo Espinoza, Interpreter and Translation Services.

18. Canada Passport issued to Eduardo Espinoza, Canadian national, Passport No. JQ539536

19. Pages 14 and 15 of the Visa section of passport.

20. 2010 W-2 Form from Express Services, Inc.

21. 2010 W-2 Form from Legal Aid Serv. of Brow. City, Inc.

22. 2010 Form 1040 w/Schedules C-EZ, SE, & M and Worksheets & Depreciation Reports.

23. 2009 Form 1040 w/Schedules C, SE, L & M and Worksheets & Depreciation Reports.

24. 2008 Form 1040 w/Form 8829, Schedules C & SE.

25. Form 4506T-EZ for the IRS to provide tax information to the NPFC, if requested.

26. Florida Driver License E215-205-63-060-0.

27. U.S. (DHS) Permanent Resident Card A# 096-567-623.