CLAIM SUMMARY / DETERMINATION FORM

Claim Number : N10036-1542

Claimant : Hermeen Jacobson

Type of Claimant : Private (US)

Type of Claim : Loss of Profits and Earning Capacity

Amount Requested : $106,360.66

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 

claims for certain individual and business claims on behalf of BP.

CLAIM AND CLAIMANT:

On 03 November 2011, Hermeen Jacobson (the Claimant) presented a claim to the Oil Spill 

Liability Trust Fund (OSLTF) for $106,360.66 for loss of profits and impairment of earnings 

capacity resulting from the Deepwater Horizon oil spill. 

The Claimant worked as a bartender for Castaways Beachside Restaurant and Raw Bar 

(Castaways) in Pensacola, Florida. Castaways opened for business for the first time 02 April 

2010.1

 The Claimant worked for Castaways until it closed December 31, 2010.2 The Claimant 

states she lost potential earnings at Castaways due to the oil spill.3

 The loss of earnings is from 

May 2010 to August 2011.4

 

Claimant’s Optional OSLTF Claim form indicates that Claimant filed a claim in the multidistrict 

litigation now pending in the United States District Court for the Eastern District of Louisiana 

(MDL-2179 In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf Of Mexico, on 

April 20, 2010) against BP (the “MDL”) on 20 April 2011. Although under the statute the 

NPFC may not approve and certify the payment of a claim during the pendency of an action by 

the person in court to recover costs which are the subject of the claim, the NPFC may adjudicate 

such a claim to determine whether it may be compensable. Where appropriate, such a claim may 

be denied.

On 07 November 2011 the NPFC sent the Claimant a letter requesting additional information in 

order to evaluate the claim. On 28 November 2011 the Claimant responded to the request.

Before presenting the claim to the NPFC, the Claimant filed an Emergency Advance Payment 

(EAP) with the GCCF on 07 September 2010 in the amount of $33,090.00.5

 The claim was 

1 Letter written by the Claimant dated 30 August 2011 explaining the claim

2 Letter written by the Claimant dated 30 August 2011 explaining the claim 3 OSLTF Claim Form signed by Claimant 30 August 2011

4 Lost Earning Capacity Worksheet May 2010 to August 2011

5 Report from the GCCF dated 21 November 2011

 
assigned Claimant ID #1067322 and claim #55750.6 The EAP claim was paid $33,100.00 on 13 

October 2010.7

 Additionally, Claimant filed an Interim Payment (ICQ12011) claim with the 

GCCF on 23 February 2011 in the amount of $90,747.00.8

 The claim was assigned claim 

#9301056.9

 On 10 May 2011 the GCCF made the Claimant a Final Payment Offer of 

$5,000.00.10 Additionally, BP paid the Claimant $18,664.06 on 07 June 2010.11

REQUEST FOR RECONSIDERATION:

On February 2, 2012, the Claimant sent a request for reconsideration to the NPFC stating she 

would like the NPFC to reconsider her claim. The Claimant requested reconsideration which 

was received by the NPFC on February 2, 2012. The Claimant sent in a two-page typed letter 

along with a news article from the Pensacola New Journal that discusses the future of Castaways 

prior to the oil spill. The Claimant sent the article in order to understand what the establishment 

Castaways was “slated and destined to become (without the oil spill)”12.

The Claimant provided the contact information for Mr. Jimmy Wiltcher who was the Operations 

Manager of Castaway’s during the Claimant’s employment. The Claimant also provided the 

names and phone numbers of two other individuals that she states had firsthand knowledge of 

similar businesses that previously operated in the same location.

The NPFC denied the claim originally on December 6, 2011. The NPFC determined that since 

Castaways Beachside Restaurant and Raw Bar (Castaways) opened for business 02 April 2010 

just before the oil spill, the Claimant does not have sufficient historical data on which to base her 

loss of earnings as a bartender at Castaways. The Claimant based her estimated lost earnings on 

three estimates from persons in the restaurant business.13 The estimates are not based on 

historical data. NPFC wanted to contact the general manager at Castaway as part of its due 

diligence to corroborate her claim. However, the Claimant stated she was unable to locate him.14

The NPFC was unable to corroborate the causation of the alleged losses based on the 

documentation provided. 

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

there was an alleged loss in the amount claimed, and (2) that the alleged loss was 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. 

RECONSIDERATION CLAIM ANALYSIS:

Under 33 CFR 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 

6 GCCF On-Line Claim Status 7 GCCF Notice of Determination dated 13 October 2011

8 Report from the GCCF dated 21 November 2011

9 GCCF On-Line Claim Status 10 GCCF Determination Letter dated 10 May 2011 11 Report from the GCCF dated 21 November 2011 and GCCF Determination Letter dated 10 May 2011 12 Claimant’s January 15, 2012 letter in response to her denial determination from the NPFC. 13 Jimmy Wiltcher, general manager at Castaways’, estimated $75,000.00. Mary Karen Carli, previous bartender at 

The Reef in Perdido Key, Florida, estimated $112,875.00. Marty McGreavy, a hospitality consultant, estimated 

$113,300.00. Also see Lost Earning Capacity Worksheet May 2010 to August 2011

14 Claimant’s e-mail of 03 December 2011 describes her attempts to contact Jimmy Wiltcher, General Manager at 

Castaways.

 
support the claim. Under 33 CFR § 136.233, a claimant must establish loss of profits or 

impairment of earning capacity and that the loss was due to the destruction or injury to real or 

personal property or natural resources. The NPFC considered all the documentation submitted 

by the Claimant. The request for reconsideration must be in writing and include the factual or 

legal grounds for the relief requested, providing any additional support for the claim. 33 CFR 

136.115(d). 

The NPFC performed a de novo review of the entire claim submission upon reconsideration. 

Upon review of all of the Claimant’s information, the Claimant did not produce sufficient

documentation that would persuade the NPFC to change its original denial determination. While 

the Claimant has provided the names of two individuals that could attest to the existence of two 

like businesses that existed in the same physical building prior to the Castaways and provided a 

contact number for Mr. Wiltcher, she has not provided any information associated with the 

financial stability of the business or its projected revenues or how it was directly impacted by the 

oil spill. Additionally, the Claimant has not demonstrated that her calculation for arriving at her 

alleged loss is reasonable or based on useful information. 

On February 13, 2012, the NPFC spoke with Mr. Jimmy Wiltcher, previous Operations Manager 

at Castaways. He explained that he did write two letters in support of the Claimant and that he 

has been in the industry for many years and states that business at Castaways was affected by the 

oil spill and also that projected income levels never materialized. The NPFC asked whether or 

not Castaways filed a claim and if he would be willing to produce the financial data to support 

his assertions regarding business losses.

Mr. Wiltcher advised that he does not have access to any of the financial data and that he was 

released from Castaways by the current Management. Mr. Wiltcher stated the NPFC could 

contact Mr. Mike Jenkins who is currently employed by Castaways to see if he would be willing 

to provide aid to assist the Claimant in proving her alleged losses based on projected business 

income and actual income. The NPFC has contacted the number provided for Mr. Jenkins and 

has not been able to speak with him or receive a return call in order to obtain financial 

information about Castaways that would corroborate the Claimant’s assertions and alleged loss.

During the NPFC’s conversation with Mr. Wiltcher, he was asked about a document the 

Claimant produced in her claim package that depicted a daily record of tips during her 

employment at Castaways and signed by Mr. Wiltcher. He affirmed that he signed the 

document. Upon confirmation, the NPFC inquired as to why the Claimant’s W-2 did not match 

up with what she asserted to have earned at Castaways. The NPFC informed him that there was 

more than a 50% difference of what the company reported she earned in 2010 on her W-2 vice 

what the Claimant asserts she made which is what she used in calculating her alleged losses. The 

NPFC expressed concern over the validity of assertions based on the noted discrepancy. Mr. 

Wiltcher told the NPFC that it appears that some “shady” financial business may be going on 

with Castaways but could not elaborate further and stated if we did reach Mr. Jenkins, he wasn’t 

sure they would be willing to provide anything.

Mr. Wiltcher informed the NPFC that he did file a claim with the GCCF as an individual and 

was paid and that his income structure was salary which is how his losses were calculated. He 
did not offer to provide any further details. In closing, Mr. Wiltcher advised that he was just 

trying to help the Claimant as he feels she is entitled to some type of compensation.

Upon further review of the claim, the Claimant submits that her income taxes for 2008 and 2009 

are irrelevant to the issue at hand and as such, has not produced such documentation. 

Additionally, it appears based on statements made in the Claimant’s submission, she recently 

returned to the work force in 2010. While the Claimant has obtained statements from individuals 

in the local area familiar with the industry she had been working in, they gave their opinions on 

what they estimate bartender income to be at other establishments in the vicinity of where 

Castaways was located.

In consideration of the Claimant just becoming a bartender at Castaways immediately preceding 

the oil spill, coupled with no historical financial data for Castaways since it was a new business, 

uncertainty on the wages earned by the Claimant as reported on her W-2 for Castaways vice 

what she asserts to have made, the fact that she received $52,000.00 between payments made by 

BP and GCCF, and the fact that the Claimant’s calculation of her alleged losses are not 

supported by the record, the NPFC is unable to determine that the Claimant has experienced a 

loss that was 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 or that her alleged loss is in fact $106,360.66 

as claimed. Based on the evidence presented, it appears the Claimant made more in 2010 than 

she had since at least prior to 2008.

Based on the foregoing information, this claim is denied upon reconsideration.

Claim Supervisor: Thomas Morrison

Date of Supervisor’s review: 3/14/12

Supervisor Action: Denial on reconsideration approved

Supervisor’s Comments: