CLAIM SUMMARY/DETERMINATION FORM

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 19 September 2011, Terria Shanell DuBose (the Claimant), presented an Optional Oil Spill Liability 

Trust Fund (OSLTF) Claim Form to the National Pollution Funds Center (NPFC) seeking $24,000.00 in 

loss of profits and impairment of earnings capacity that allegedly resulted from the Deepwater Horizon oil 

spill.

At the time of the Deepwater Horizon oil spill, the Claimant was employed in a hotel in the Mobile, 

Alabama region.1

 The Claimant asserted that due to the Deepwater Horizon oil spill, she lost her job and 

as a result suffered reduced income.2

 

The Claimant did not provide a calculation to explain her sum certain of $24,000.00.

APPLICABLE LAW

The Oil Pollution Act of 1990 (OPA) provides that each responsible party for a vessel or facility from 

which oil is discharged into or upon the navigable waters or adjoining shorelines or exclusive economic 

zone is liable for removal costs and damages. 33 U.S.C. § 2702(a). Damages include the loss of profits 

or impairment of earning capacity due to the injury, destruction or loss of real property, personal property, 

or natural resources, which shall be recoverable by any claimant. 33 U.S.C. §2702(b)(2)(E).

The OSLTF, which is administered by the NPFC, is available to pay claims for uncompensated damages 

pursuant to 33 U.S.C. § 2712(a)(4) and § 2713 and the OSLTF claims adjudication regulations at 33 

C.F.R. Part 136. With certain exceptions a claim must first be presented to the responsible party. 33 

U.S.C. § 2713(a). If the claim is either denied or not settled by any person by payment within 90 days 

after the date on which it was presented, the claimant may elect to commence an action in court or present 

the claim to the OSLTF. 33 U.S.C. § 2713(c).

Pursuant to the claims regulations, 33 C.F.R. § 136.233, a claimant must establish the following to prove 

loss of profits or impairment of earning capacity:

(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 dated 19 September 2011. 2 Optional OSLTF Claim form dated 19 September 2011.

Claim Number N10036-1423

Claimant Terria Shanell DuBose

Type of Claimant Private (US) 

Type of Claim Loss of Profits and Impairment of Earnings Capacity

Amount Requested $24,000.00

 
(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 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 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

The Claimant’s Submission to the OSLTF

In support of her claim, the Claimant presented the following documentation to the NPFC:

- Optional OSLTF Claim form received 19 September 2011.

Prior to presenting this Claim to the NPFC, the Claimant filed an Emergency Advance Payment (EAP) 

Claim with the GCCF for loss of profits and impairment of earnings capacity on 20 September 2010 in 

the amount of $12,000.00.3

 The Claimant was assigned Claimant ID # 3020503 and Claim ID # 74542. 

The GCCF granted payment on the EAP on 23 December 2010 in the amount of $12,000.00.4

 

Additionally, the Claimant filed a Full Review Final (FRF) Claim with the GCCF for loss of profits and 

impairment of earnings capacity on 23 November 2010 in the amount of $36,000.00.5

 The Claimant was 

assigned Claim ID # 9025103. The Claimant accepted a Quick Pay Final Payment, Claim ID # 9005912, 

on 18 December 2010 in the amount of $5,000.00.6

Based upon the evidence provided by the Claimant, it appears that the subject matter for the GCCF claims 

is the same as the subject matter of the claim before the NPFC, i.e., that due to the effects of the 

Deepwater Horizon oil spill the Claimant lost her job working at a hotel and as a result suffered reduced 

income. The NPFC deems the Claimant’s GCCF claims to be properly presented to the RP and properly 

presented to the NPFC. Accordingly, this Claim Summary Determination for NPFC Claim N10036-1423 

considers and addresses the earnings claimed in the claim up to $24,000.00 presented to the responsible 

party, specifically; GCCF Claim #’s 74542 (EAP), 9025103 (FRF) and 9005912 (Quick Pay Final 

Payment).

3 Report from the GCCF dated 06 October 2011.

4 GCCF Notice of Determination dated 23 December 2010.

5 Report from the GCCF dated 06 October 2011.

6 GCCF Quick Payment Final Payment Form dated 18 December 2010.

 
NPFC Determination

The claim is denied. 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 considered all documentation presented by the Claimant.

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

RP/GCCF in the amount of $5,000.00.7

 The Claimant has executed a Release and Covenant Not to Sue 

in return for this Final Payment.8

 By signing this document, the Claimant has released to the RP/GCCF, 

any rights to additional recovery regarding this injury.9

 The Release executed by the Claimant 

specifically states:

[i]n consideration of payment in the amount of $5,000.00, Claimant hereby releases and 

forever discharges, and covenants not to sue BP Exploration & Production Inc. (“BP”) 

and the other Released Parties, [. . .] for any losses, damages, costs, expenses, injuries, 

claims, causes of actions, liabilities, or other relief that Claimant has or may have [. . .] 

arising from or relating in any way to the [Deepwater Horizon oil spill].10

Furthermore, language in the document states that:

Released Parties means anyone who is or could be responsible or liable in any way for 

the [Deepwater Horizon oil spill] or any damages related thereto, whether a person, 

company or governmental entity, including (but not limited to) BP, other potentially 

responsible or liable parties, including but not limited to the parties listed in Attachment 

A to this Release, the federal Oil Spill Liability Trust Fund and any state or local fund, 

and each of their respective Affiliates as defined above.11

Therefore, the Claimant has waived rights to further recovery regarding the losses presented to the NPFC. 

Any payment from the OSLTF requires the acquisition of rights from the RP. Because these rights have 

been released by the Claimant to the RP/GCCF in exchange for the Quick Pay Final Payment, the 

Claimant cannot also recover from the OSLTF.

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.

This claim is denied because the Claimant has accepted final payment from the RP/GCCF and is 

ineligible to recover from the OSTLF.

7 GCCF Quick Payment Final Claim Form dated 18 December 2010.

8 GCCF Release and Covenant Not to Sue dated 18 December 2010. 

9 GCCF Release and Covenant Not to Sue dated 18 December 2010.

10 GCCF Release and Covenant Not to Sue dated 18 December 2010. 11 GCCF Release and Covenant Not to Sue dated 18 December 2010.

Claim Supervisor: NPFC Claims Adjudication Division

Date of Review: 10/13/11

Supervisor’s Actions: Denial approved

Supervisor’s Comments: