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 08 December 2011, Larry Duncan, (the Claimant), presented an Optional Oil Spill Liability 

Trust Fund (OSLTF) Claim Form to the National Pollution Funds Center (NPFC) seeking 

$14,000.00 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 worked at Tops’l Beach and 

Racquet Resort (Tops’l) as a contract employee for Uni-Star Management.1

 The Claimant 

asserts that due to the Deepwater Horizon oil spill, the tourism industry in the Destin, Florida 

region collapsed.

2

 As a result of the collapse of Destin’s tourism industry, the Claimant asserts 

he was laid-off from his job and subsequently suffered reduced income. 3

 

The Claimant provided the following explanation regarding the calculation of his sum certain of 

$14,000.00: he noted next to his sum certain that $14,000.00 reflected one year of wages.4

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, 

1 Optional OSLTF Claim Form signed 29 November 2011 and received 08 December 2011, Letter from Tops’l 

Beach and Racquet Resort [undated].

2 Optional OSLTF Claim Form signed 29 November 2011 and received 08 December 2011. 3 Optional OSLTF Claim Form signed 29 November 2011 and received 08 December 2011.

4 Optional OSLTF Claim Form signed 29 November 2011 and received 08 December 2011.

Claim Number N10036-1599

Claimant Larry Duncan 

Type of Claimant Private (US) 

Type of Claim Loss of Profits and Impairment of Earnings Capacity

Amount Requested $14,000.00

 
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.

(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 his claim, the Claimant presented the following documentation to the NPFC:

- Optional Oil Spill Liability Trust Fund (OSLTF) Claim Form dated 29 November 2011 

and received 08 December 2011;

- Letter from Tops’l Beach and Racquet Resort [undated];

- Letter from Uni-Star Management, Inc. [undated];

- 2010 Form 1099-MISC from Elite Building Maintenance;

- 2010 Form 1099-MISC from Land of Promise USA, Inc.;

- 2010 Form 1099-MISC from Eastern Hospitality Management, LLC.

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

(EAP) Six Months Claim with the GCCF for loss of profits and impairment of earnings capacity 

on 23 September 2010 in the amount of $13,536.00.5

 The Claimant was assigned Claimant ID # 

3032496 and Claim ID # 86417. The EAP was denied on 07 December 2010.6

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

Claimant’s GCCF claim is the same as the subject matter of his claim before the NPFC, i.e., that 

due to the Deepwater Horizon oil spill, the tourism industry in the Destin, Florida region 

collapsed. As a result of the drop in tourism, the Claimant was laid-off from his job at Tops’l. 

The NPFC deems that Claimant’s GCCF claim as properly presented to the RP and properly 

presented to the NPFC. Accordingly, this Claim Summary Determination for NPFC claim 

N10036-1599 considers and addresses the claim presented to the responsible party; specifically, 

GCCF Claim ID #’s 86417 (EAP).

NPFC Determination

Under 33 C.F.R. § 136.103(a), all claims for removal costs or damages must be presented first to

the responsible party (RP). The Claimant presented an EAP Six Month Claim for loss of profits 

and impairment of earnings capacity in the amount of $13,536.00 to the GCCF.7

 The Claimant 

then presented a claim for loss of profits and impairment of earnings capacity in the amount of 

$14,000.00 to the NPFC.8 Any claimed amount of damages exceeding $13,536.00 was not 

properly presented to the RP/GCCF pursuant to 33 C.F.R. § 136.103(a) and is therefore 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.

The remainder of the Claim is denied because the Claimant fails to prove that his alleged loss in 

the amount of $13,536.00 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.

5 Report from the GCCF dated 23 January 2012.

6 GCCF Denial Letter dated 07 December 2010. 7 Report from the GCCF dated 23 January 2012.

8 Optional OSLTF Claim Form signed 29 November 2011 and received 08 December 2011.

 
The Claimant asserts that due to the Deepwater Horizon oil spill, the tourism industry in the 

Destin, Florida region collapsed.9

 As a result of the collapse of the tourism industry, the 

Claimant asserts he was laid-off from his job at Tops’l and subsequently suffered reduced 

income. 10 The Claimant, however, fails to provide a connection between the Deepwater Horizon 

oil spill and a reduction in income from being laid-off at Tops’l. The Claimant included in his 

submission to the NPFC financial information from 2010 as well as letters from Tops’l and UniStar Management.11

In an effort to verify the effect of the Deepwater Horizon oil spill on the Claimant’s income, the 

NPFC made a formal request for additional information.12 The NPFC requested the following 

items: full and complete Federal Tax Returns, all Form W-2’s and Form 1099’s from 2008-2010 

and a record of all unemployment benefits received from 2010 to the present.13 This letter was 

delivered to the Claimant’s address on 19 December 2011.14 As of the writing of this 

determination, however, no response has been received from the Claimant regarding any of the 

above listed items. Accordingly, the claimant fails to provide a complete accounting of his 

income from 2008-2010. Thus, based upon the information provided to the NPFC, the Claimant 

fails to prove that he suffered a loss due to the Deepwater Horizon oil spill.

This claim is denied because the Claimant has failed to meet his burden to demonstrate either his 

alleged loss or that his alleged loss was due to the injury, destruction, or loss of real property, 

personal 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 Review: 1/25/12

Supervisor’s Actions: Denial approved

Supervisor’s Comments:

9 Optional OSLTF Claim Form signed 29 November 2011 and received 08 December 2011. 

10 Optional OSLTF Claim Form signed 29 November 2011 and received 08 December 2011, Letter from Tops’l 

Beach and Racquet Resort [undated].

11 For a complete listing of the documentation provided by the Claimant, see The Claimant’s Submission to the 

OSLTF above.

12 NPFC Request for Additional Information dated 14 December 2011. 13 NPFC Request for Additional Information dated 14 December 2011. 14 United States Postal Service, Tracking # 70111570000148028306, delivered 3:18pm on 19 December 2011.