CLAIM SUMMARY/DETERMINATION FORM

Claim Number N10036-1604

Claimant Ms. Sonia Espineira

Type of Claimant Private (US)

Type of Claim Loss of Profits and Impairment of Earning Capacity

Amount Requested $40,000.00

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 9 December 2011, Ms. Sonia Espiniera, (the Claimant) presented a claim to the Oil Spill 

Liability Trust Fund (OSLTF) seeking $40,000.00 in loss of profits damages resulting from the 

Deepwater Horizon oil spill.1

The Claimant is a co-owner of Deco Truss Company, Inc. (Deco), a roof truss and building 

material supplier in south Florida, operating in Miami and the Florida Keys.2

 The Claimant 

alleged that the Deepwater Horizon oil spill “caused [the] Florida Keys construction market to 

stop.”3 The Claimant alleged that due to the loss of business, the Claimant “did not take 

pay/salary to help keep employees employed.”4

The Claimant stated that although Deco has been compensated by the GCCF for its corporate 

losses, the Claimant has not been compensated for $40,000.00 in salary allegedly lost due to 

effects of the Deepwater Horizon oil spill, which she now seeks from the NPFC.5

 

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 9 December 2011. 

2 Letter from the Claimant to the GCCF, dated 28 October 2011, indicating that the Claimant owns 50% of Deco 

Truss Company, Inc.

3 Optional OSLTF Claim Form, signed 9 December 2011.

4 Optional OSLTF Claim Form, signed 9 December 2011.

5 Email from the Claimant to the NPFC 9 December 2011; Optional OSLTF Claim Form, signed 9 December 2011.

 
(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, signed 9 December 2011;

• Email from the Claimant to the NPFC, 9 December 2011;

• GCCF Determination Letter on Final Payment Claim, 13 October 2011;

• GCCF Final Payment Election Form, 13 October 2011;

• GCCF Re-Review Election Form, 13 October 2011;

• GCCF Interim Claim Submission Form, seeking lost earnings or profits in the amount of 

$100,000.00;

• GCCF Denial Letter on Interim Payment/Final Payment Claim, Claimant ID 3517361, 18 

October 2011;

• GCCF Denial Letter on Interim Payment/Final Payment Claim, Claimant ID 3517361, 10 

June 2011;

• Chart, showing the Claimant’s monthly earnings from May – December 2008, 2009, 

2010;

• Letter from the Claimant to the GCCF, describing losses, 28 October 2011;

• Deco Truss Company, Inc., Summary Report by Employee: Espineira, Sonia; Monthly 

reports, January 2008- July 2011;
• 2008 W-2 Wage and Tax Statement, showing wages of $85,663.90;

• 2009 W-2 Wage and Tax Statement, showing wages of $71,117.20;

• 2010 W-2 Wage and Tax Statement, showing wages of $32,326.00;

• Chart showing the Claimant’s pay history, 28 October 2011;

• Letter from the Claimant to the GCCF, requesting re-review of GCCF denial, 9 June 

2011;

• GCCF Determination Letter on Final Payment Claim, Claimant ID 3488160, 13 October 

2011;

• GCCF Final Payment Election Form, 13 October 2011;

Presentment of Business Claim to the GCCF

Prior to presentment of this Claim to the NPFC, the Claimant presented a Full Review Final 

(FRF) Claim to the GCCF for losses sustained by Deco. Deco, as a corporate claimant, was 

assigned Claimant ID # 3488160 and the FRF claim was assigned Claim # 9222565. The GCCF 

issued payment on this claim on 13 October 2011 in the amount of $98,132.42.6

 The Claimant, 

acting in her capacity as co-owner of the business, executed a Release and Covenant Not to Sue 

in return for Final Payment on 19 October 2011.7

Presentment of Individual Claim to the GCCF and NPFC

Prior to presentment of this claim to the NPFC, the Claimant presented a Full Review Final 

(FRF) Claim to the RP/GCCF seeking loss of profits and impairment of earning capacity 

damages in the amount of $100,000.00.8

 The Claimant was assigned Claimant ID # 3517361 

and the FRF claim was assigned claim # 9372669.9

 This claim was denied by the RP/GCCF on 

10 June 2011.10 

On 9 December 2011, the Claimant presented this claim to the NPFC, seeking loss of profits 

damages in the amount of $40,000.00.11 Specifically, the Claimant seeks to recover her lost 

salary, which she alleges is separate and distinct from lost corporate income.12 

Because this claim addresses the same losses as previously presented to the RP/GCCF, and 

because the claimed damage amount does not exceed the amount previously presented to the 

RP/GCCF, the NPFC may fully adjudicate this claim in the amount of $40,000.00 as currently 

before the NPFC.13

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.

6 GCCF Determination Letter dated 13 October 2011. 7 GCCF Release and Covenant Not to Sue Letter signed on 19 October 2011.

8 GCCF Claimant Status page, accessed on 22 December 2011.

9 GCCF Claimant Status page, accessed on 22 December 2011.

10 GCCF Denial Letter on Interim Payment/Final Payment Claim, Claimant ID 3517361, 10 June 2011. 11 Optional OSLTF Claim Form, signed on 9 December 2011. 12 Email from the Claimant to the NPFC, 9 December 2011. 13 33 C.F.R. § 136.103(a).

 
This claim is denied because the Claimant (1) has executed a Release and Covenant Not to Sue, 

barring any further recovery for injuries allegedly resulting from effects of the Deepwater 

Horizon oil spill, and (2) has failed to demonstrate that any losses the Claimant sustained were 

caused by the discharge of oil resulting from the Deepwater Horizon oil spill. 

1. Release of rights to the RP/GCCF

The Claimant first submitted a claim to the RP/GCCF to recover losses allegedly sustained by 

Deco Truss Company, Inc. (Deco).14 The Claimant, acting in her capacity as a co-owner of the 

business, executed a Release and Covenant Not to Sue in return for final payment in the amount 

of $98,132.42.15

By signing this document, the Claimant released to the RP/GCCF, any rights to additional 

recovery regarding damages allegedly resulting from effects of the Deepwater Horizon oil 

spill.

16 The Release, signed by the Claimant on 19 October 2011, explicitly applies to “heirs, 

beneficiaries, agents, estates, executors, administrators, personal representatives, subsidiaries, 

parents, affiliates, partners limited partners, members, joint ventures, shareholders, predecessors, 

successors, assigns, insurers, and attorneys” (emphasis added).17

As a co-owner and officer of Deco, the Claimant is a shareholder, and has therefore released all 

rights regarding damages allegedly resulting from the Deepwater Horizon oil spill, to the 

RP/GCCF.

Any payment from the Oil Spill Liability Trust Fund (the Fund) requires the acquisition of rights 

from the RP. Because these rights have been released by the Claimant to the RP/GCCF, the 

Claimant cannot also recover from the Fund.

2. Failure to prove loss of profits due to the Deepwater Horizon oil spill

In order to prove this claim for loss of profits damages under OPA, the Claimant would be 

required to furnish evidence sufficient to establish that (1) Deco sustained a certain amount of 

financial loss, (2) the loss resulted in the corporation being unable to continue to pay the 

Claimant’s salary, and (3) the loss was caused by the discharge of oil resulting from the 

Deepwater Horizon oil spill. 

The Claimant stated that the “oil spill caused [the] Florida Keys construction market to stop.”18

However, the Claimant has failed to provide any documentation to support this assertion or to 

indicate the extent of the financial loss allegedly sustained by Deco as a result of the oil spill.

Rather, as proof that the Deepwater Horizon oil spill caused Deco to sustain a financial loss, the 

Claimant provided evidence of payments made to Deco by the GCCF. The Claimant stated that 

a GCCF payment offer letter “proves Deco Truss Company Inc. was [a]ffected, because again, 

Deco Truss Company, Inc. did receive payment.”19 However, proof of payment by the 

RP/GCCF does not prove that the Claimant’s business sustained a loss of profits that would be 

compensable under the Oil Pollution Act of 1990 (OPA).

14 Deco Truss Company, Inc., GCCF Claimant ID 3488162. 15 GCCF Release and Covenant Not to Sue, signed on 19 October 2011. 16 GCCF Release and Covenant Not to Sue, signed on 19 October 2011. 17 GCCF Release and Covenant Not to Sue, signed on 19 October 2011. 18 Optional OSLTF Claim Form, signed on 9 December 2011. 19 Email from the Claimant to the NPFC, 9 December 2011.

 
Furthermore, because the Claimant has not provided evidence regarding losses allegedly 

sustained by Deco, the NPFC is unable to calculate the extent to which the Claimant’s losses as 

an officer of the corporation may have been compensated by payments made by the RP/GCCF. 

Based on the foregoing, this claim is denied because (1) the Claimant has signed a Release and 

Covenant not to Sue, releasing all rights regarding these alleged injuries to the RP/GCCF, and 

(2) the Claimant has failed to prove that any losses she may have sustained were caused by 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: 12/27/11

Supervisor’s Action: Denial approved

Supervisor’s Comments: