CLAIM SUMMARY/DETERMINATION FORM

Claim Number N10036-1447

Claimant Ms. Meghan Clarke

Type of Claimant Private (US)

Type of Claim Loss of Profits and Impairment of Earning Capacity

Amount Requested $8,500.00

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 26 September 2011, Ms. Meghan Clarke (Claimant) presented a claim to the Oil Spill 

Liability Trust Fund (OSLTF) seeking $8,500.00 in loss of profits and impairment of earnings 

capacity resulting from the Deepwater Horizon oil spill. 1

At the time of the oil spill, the Claimant was working as a bar tender at Crabby Bill’s Seafood, 

Inc. in Indian Rocks Beach, Florida.2 The Claimant alleged that the restaurant “sustained a 20-

30% loss in business,” and that “[i]n September, the loss in shifts and tip averages was so great 

that [the Claimant] left this Crabby’s location in search of a busier bar.”3

The Claimant has not provided an indication as to how she calculated her losses to arrive at her 

sum certain amount of $8,500.00.

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.

1 Optional OSLTF Claim Form, received on 26 September 2011.

2 Optional OSLTF Claim Form, received on 26 September 2011.

3 Optional OSLTF Claim Form, received on 26 September 2011; Letter from the Claimant to the GCCF, 17 

December 2010.

 
(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, received on 26 September 2011;

• Document, “Table of Contents of Enclosures”;

• Letter from the Claimant to the NPFC, dated 15 September 2011;

• Letter from the Claimant to the GCCF, describing losses, 17 December 2010;

• Letter from Jenn Drnach, Front of House Manager, noting estimated 15-20% drop in 

sales during the summer of 2010, 14 December 2010;

• Letter from Paul Jenkins, Front of House Manager, noting estimated 30-40% drop in 

sales during the summer of 2010;

• Letter from Advantec noting cancellation of benefits, 5 October 2010;

• Letter from Jill M. Conklin, Advantec, 9 December 2010;

• Spreadsheet showing the Claimant’s earnings;

• Pay stub, 2/2/2011 – 8/31/2011;

• 2007 Form 8879, showing adjusted gross income of $23,722.00;

• 2007 Form 1040, showing adjusted gross income of $23,722.00;

• 2007 Schedule A (Form 1040);

• 2007 Form 8917;

• Form 8283(Rev. 12-2006);

• Employee Business Expense Statement (Schedule A, Line 21);

• 2008 Form 8879, showing adjusted gross income of $20,209.00;
• 2008 Form 1040A, showing total income of $20,209.00;

• 2008 Form 8863;

• 2009 Form 8879, showing adjusted gross income of $19,021.00;

• 2009 Form 1040A, showing adjusted gross income of $19,021.00;

• 2009 Form 8863;

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

• 2010 Form 8879, showing adjusted gross income of $18,920.00;

• 2010 Form 1040A, showing total income of $18,920.00;

• 2010 Form 8863;

• 2010 Schedule M (Form 1040A or 1040).

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

(EAP) claim to the RP/GCCF, seeking lost profits and earnings damages. The Claimant was 

assigned ID 3449265 and the EAP claim was assigned Claim # 534643. This claim was denied 

on 14 December 2010.4

The Claimant then submitted a First Quarter (ICQ12011), Second Quarter (ICQ22011) and Third 

Quarter (ICQ32011) Interim Claim to the RP/GCCF. These Claims were assigned Claim ID #’s 

9139659, 9343963, and 9440127.5

 The Claimant’s Interim Claims were denied, but the 

Claimant was offered a final payment of $9,034.89 on 22 September 2011, which the Claimant 

accepted on 23 September 2011.6 The Claimant indicated via phone conversation that she 

executed the Release and Covenant Not to Sue in return for final payment.7

On 26 September 2011, the Claimant presented this claim to the NPFC, seeking loss of profits 

and impairment of earnings capacity in the amount of $8,500.00. Because this claim has been 

previously presented by the Claimant to the RP/GCCF in ICQ12011, ICQ22011 and ICQ32011, 

all of which were denied, the NPFC may adjudicate this claim in the amount of 8,500.00. 

However, if any of this amount was not presented to the RP/GCCF prior to presentment of this 

claim, that amount is 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.

This claim is denied because the Claimant (1) has released her rights regarding loss of profits 

damages to the RP/GCCF in return for final payment, and (2) the Claimant has not demonstrated 

that she sustained an actual financial loss.

4 GCCF Claimant Status, accessed on 30 September 2011.

5 GCCF Claimant Status, accessed on 30 September 2011.

6 GCCF Claimant Status, accessed on 30 September 2011.

7 PHONECON: NPFC Staff and the Claimant, 30 September 2011. 8 33 C.F.R. 136.103(a).

 
1. Release of Rights to the RP/GCCF

Based on the information available to the NPFC, the Claimant has accepted a Final payment 

from the RP/GCCF in the amount of $9,034.89.9 The Claimant has executed a Release and 

Covenant Not to Sue in return for final payment.10 By signing this document, the Claimant has 

released to the RP/GCCF, any rights to additional recovery regarding this injury.11 The Release 

executed by the Claimant specifically states, 

By signing this document, you are forever waiving and releasing all claims that 

you may have against BP or any other party . . . in connection with the 

[Deepwater Horizon oil spill].12

The Claimant has therefore waived rights to further recovery regarding the losses presented to 

the NPFC. Any payment from the Oil Spill Liability Trust Fund (the Fund) requires the 

acquisition of rights from the RP/GCCF. Because these rights have been released by the 

Claimant to the RP/GCCF, the Claimant cannot also recover from the Fund.

If the Claimant believes that payments received from the RP/GCCF are for damages other than 

those that are the subject of this claim, the Claimant must explain this in her request for 

reconsideration. The Claimant must also include copies of any and all waivers and covenants 

signed by the Claimant regarding injuries related to the Deepwater Horizon oil spill.

2. Failure to demonstrate actual financial losses in the amount of $8,500.00

The Claimant alleged that she sustained a 25-30% loss in tips in the months following the oil 

spill until the Claimant chose to leave her job in September of 2010.13 Inasmuch as the Claimant 

voluntarily decided to leave her position, any losses incurred after September of 2010 are not 

attributable to the Deepwater Horizon oil spill. The remainder of this section of the 

determination considers the Claimant’s alleged losses from May – September 2010.

According to a spread sheet showing the Claimant’s hours and earnings during her time at 

Crabby Bill’s, it appears that the Claimant grossed a total of $2,748.89 from May to September 

of 2009 and grossed $2,378.67, during that period of 2010, failing to support the Claimant’s 

alleged losses of $8,500.00.14 

The Claimant also failed to provide documentation to substantiate her claim that she “sustained a 

25 – 30% loss in tips.”15 The Claimant’s reported tips and wages on her tax returns indicate that 

she earned $19,021.00 in 2009 and $18,920.00 in 2010, for a difference in earnings of only 

$101.00.16 The Claimant stated that she began her job at Crabby Bill’s in March of 2009, and 

left in September of 2010.17 Therefore the Claimant’s 2009 earnings reflect 10 months of 

employment, compared to only 8 months in 2010. Based on this information, the Claimant has 

not demonstrated that she sustained an actual loss or reduction in profits due to effects of the 

Deepwater Horizon oil spill.

9 GCCF Claimant Status, accessed on 30 September 2011.

10 GCCF Claimant Status, accessed on 19 September 2011. 11 Standard GCCF Release and Covenant Not to Sue, Available on GCCF Claimant Status, accessed on 30 

September 2011.

12 GCCF Release and Covenant Not to Sue. 13 Letter from the Claimant to the NPFC, dated 17 December 2010 14 Spread sheet of hours and earnings, provided by the Claimant. 15 Letter from the Claimant to the NPFC, dated 17 December 2010. 16 Letter from the Claimant to the NPFC, dated 17 December 2010; Tax documentation provided by the Claimant. 17 Letter from the Claimant to the NPFC, dated 17 December 2010.

 
This claim is denied because the Claimant (1) has released rights to further recovery to the 

RP/GCCF, and (2) has failed to show that she sustained a loss or reduction in profits due to the 

discharge or substantial threat of discharge of oil resulting from the Deepwater Horizon oil spill.

Claim Supervisor: NPFC Claims Adjudication Division

Date of Supervisor’s Review: 10/5/11

Supervisor’s Action: Denial approved 

Supervisor’s Comments: