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 12 October 2011, Greg Guccione (Claimant) presented an Optional Oil Spill Liability Trust Fund 

(OSLTF) Claim Form to the National Pollution Funds Center (NPFC) seeking $12,000.00 in loss of 

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

The Claimant works in retail sales for the Saks Fifth Avenue store in New Orleans, Louisiana.1

 The 

Claimant asserted that, due to the Deepwater Horizon oil spill, he experienced a reduction in commissions 

of at a minimum $1,000.00 per month.2 The Claimant indicated that his main client base comes from the 

petroleum, tourism, and seafood industries; the three industries hit hardest by the Deepwater Horizon oil 

spill.3

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:

1 Letter of claim explanation from the Claimant, dated 01 September 2011.

2 Letter of claim explanation from the Claimant, dated 01 September 2011. 3 Letter of claim explanation from the Claimant, dated 01 September 2011.

Claim Number N10036-1484

Claimant Greg Guccione

Type of Claimant Private (US) 

Type of Claim Loss of Profits and Impairment of Earnings Capacity

Amount Requested $12,000.00

 
(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 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

Claimant’s Submission to the OSLTF

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

- Fax from the Claimant to NPFC verifying sum certain, dated 7 October 2011;

- Optional OSLTF Claim Form, dated 13 September 2011; 

- Letter of claim explanation from the Claimant, dated 01 September 2011; and 

- Paystubs from Saks Incorporated for the following periods: 25 April 2010 - 22 May 2010, 25 

July 2010 - 21 August 2010, 24 April 2011 - 21 May 2011, 24 July 2011 – 20 August 2011. 

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

claim with the GCCF on 03 October 2010 in the amount of $6,000.00.4 The Claimant was assigned 

Claimant ID # 3088467 and Claim # 142893. The Claimant received payment in the amount of 

$16,500.00 on 06 October 2010.5

 Additionally, the Claimant filed a Quick Pay (QP) claim with the 

GCCF on 28 January 2011.6

 The Claimant was assigned Claim # 9260752. The Claimant received 

payment in the amount of $5,000.00 on his Quick Pay claim.7

 

4 Report from the GCCF, dated 02 November 2011.

5 Notice of Determination Emergency Advance Payment. 

6 Report from the GCCF, dated 02 November 2011. 7 Report from the GCCF, dated 02 November 2011.

 
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 Claimant.

This claim is denied because, (1) the claim does not have proper presentment before the NPFC, (2) the 

Claimant has accepted a Quick Pay final payment, waiving any rights he may have to recover damages 

from the OSLTF regarding this incident, and (3) the Claimant has not established that any alleged losses 

he experienced were due to the Deepwater Horizon oil spill. 

1. Improper Presentment

Under 33 C.F.R. § 136.103(c), the Claimant may present a claim to the NPFC if the claim has first been 

denied by the responsible party or the claim has not been settled within 90 days of its presentment to the 

responsible party. The Claimant presented two claims to the GCCF, (1) an EAP claim of $6,000.00 for 

which the Claimant was compensated $16,500.00, and (2) an individual Quick Pay claim which the 

GCCF accepted and compensated the Claimant in the amount of $5,000.00. Therefore, the Claimant does 

not have any claims that have been denied by the responsible party or that are unsettled. As a result, the 

NPFC does not have proper presentment of any claim brought by the Claimant regarding the Deepwater 

Horizon oil spill. 

2. Release of Rights to the GCCF

Information available to the NPFC indicates that the Claimant both requested and received Quick Pay 

payment in the amount of $5,000.00.8

 The RP/GCCF requires that a Claimant execute a Release and 

Covenant Not to Sue in return for a Quick Pay final payment. Because the Claimant has accepted a Quick 

Pay final payment, and signed a Release and Covenant Not to Sue, the Claimant has released any rights to 

additional recovery regarding this injury to the RP/GCCF.9

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.

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 his request for reconsideration.10 The 

Claimant must also include copies of any and all waivers and covenants signed by the Claimant regarding 

injuries related to the Deepwater

3. No Evidence of Deepwater Horizon Oil Spill Causation

The Claimant asserted that he experienced a loss of commissions at Saks because his main customer base 

was financially damaged by the Deepwater Horizon oil spill.11 The NPFC contacted Saks Fifth Avenue 

to obtain verification of the Claimant’s assertions and requested information regarding any effect the 

Deepwater Horizon oil spill had on sales at the New Orleans Saks Fifth Avenue store. Saks Fifth Avenue 

informed the NPFC that “our New Orleans store did not experience a noticeable drop in business during 

the Spring season of 2010. In fact, our total store business in April 2010 and May 2010 posted double 

8 Report from the GCCF, dated 02 November 2011; the Claimant’s GCCF status page. 

9 Standard GCCF Notice of Quick Payment Final Claim Determination.

10 33 C.F.R. § 136.115. 11 Letter of claim explanation from the Claimant, dated 01 September 2011.

 
digit increases in business from the previous year.”12 Consequently, the NPFC is unable to confirm that 

the Deepwater Horizon oil spill had any effect on the commissions earned by the Claimant. 

This claim is denied because (1) the NPFC does not have proper presentment of costs to adjudicate the 

claim, (2) the Claimant accepted a Quick Pay final payment, releasing his rights regarding losses related 

to the Deepwater Horizon oil spill to the RP/GCCF, and (3) the Claimant failed to meet his burden to 

demonstrate that the alleged loss is 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.

Claim Supervisor: NPFC Claims Adjudication Division

Date of Supervisor’s Review: 11/8/11

Supervisor’s Actions: Denial approved

Supervisor’s Comments:

12 Letter from Saks Fifth Avenue to the NPFC, dated 01 November 2011.