CLAIM SUMMARY/DETERMINATION FORM

Claim Number N10036-1608

Claimant Demetrice Cummings

Type of Claimant Private (US)

Type of Claim Loss of Profits and Impairment of Earning Capacity

Amount Requested $18,700.00

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 15 December 2011, Mr. Demetrice Cummings (the Claimant) presented a claim to the Oil 

Spill Liability Trust Fund (OSLTF) seeking $18,700.00 in loss of profits and impairment of 

earning capacity damages allegedly resulting from the Deepwater Horizon oil spill.

1

At the time of the oil spill, the Claimant was working for a seafood processor in Apalachicola, 

Florida. Approximately six months after the oil spill, the Claimant alleged to have been 

temporarily laid off from his position as a result of the Deepwater Horizon oil spill.2 A letter 

from the Claimant’s employer states that the Claimant was laid off from 6 October 2011 until 1 

July 2011 “due to the oil spill.”3

The Claimant states that at the time he was laid off, he was earning $550.00 per week, and 

therefore seeks $18,700.00 for the 34.5 weeks during which he was unemployed following the 

oil spill. 4

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:

(a) That real or personal property or natural resources have been injured, destroyed, or lost.

1 Optional OSLTF Claim Form, signed on 7 December 2011. 

2 Optional OSLTF Claim Form, signed on 7 December 2011. 3 Letter from Rusty Crum to the GCCF, undated.

4 Optional OSLTF Claim Form, signed on 7 December 2011.

 
(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 on 12 January 2012;

• Letter from the Claimant’s employer to the GCCF, undated;

• Rusty Crum Seafood, Employee State taxes Detail, January – December 2011;

• Rusty Crum Account QuickReport, January through December 2010;

• 2009 Form W-2 Wage and Tax Statement, showing wages of $11,000.00;

• 2010 Form W-2 Wage and Tax Statement, showing wages of $20,700.00.

• Response to NPFC Request for Additional Information, received on 18 January 2012;

• Letter from the Claimant’s employer in response to NPFC request for additional 

information, 6 January 2012;

• Graham Shrimp Company, Inc., Sales by Customer Detail, 2/12/2009 – 5/5/2011.

Prior to presentment of this claim to the NPFC, the Claimant presented an initial claim to BP. 

The Claimant was compensated by BP in the amount of $1,000.00 on 31 May 2010.5

On 1 September 2010, the Claimant filed an Emergency Advance Payment (EAP) claim with the 

RP/GCCF, seeking loss of profits and wages damages of $7,200.00.6

 The Claimant was 

5 GCCF United States Coast Guard Report, 16 February 2012.

 
assigned Claimant ID 1094388 and the EAP claim was assigned claim # 46948.7

 The RP/GCCF 

issued payment on this claim in the amount of $8,300.00.8

On 30 December 2010, the Claimant submitted a First Quarter Interim Payment Claim 

(ICQ12011) to the RP/GCCF, seeking loss of profits and wages damages in the amount of 

$27,250.00.9

 The ICQ12011 was assigned claim # 9108686 and was denied by the RP/GCCF.

On 13 December 2011, the Claimant submitted a Fourth Quarter Interim Payment Claim 

(ICQ42011) to the RP/GCCF, seeking $18,700.00 in loss of profits and wages damages. The 

ICQ42011 was assigned claim # 9546198 and was denied by the RP/GCCF.10

On 12 October 2011, the Claimant submitted a Quick Pay claim to the RP/GCCF. The Quick 

Pay claim was assigned claim # 9511682 and was also denied.

On 15 December 2011, the Claimant submitted this claim to the NPFC, seeking $18,700.00 in 

loss of profits and impairment of earning capacity damages.11 The Claimant’s submission 

indicates that the subject matter of this claim for $18,700.00 is the same as the subject matter of 

the Claimant’s ICQ42011, as presented to and denied by the RP/GCCF. Presentment 

requirements under OPA have therefore been satisfied, and the NPFC may fully adjudicate this 

claim for lost earnings in the amount of $18,700.00.12

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.

In order to prove a claim for loss of profits damages, a claimant must provide documentation 

sufficient to prove (1) that the claimant sustained an actual financial loss, and (2) that the loss 

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

In order to calculate the extent of a claimant’s financial loss, OPA requires in part, that a 

claimant provide record of “(a) all income resulting from the incident; and (b) all income from 

alternative employment or business undertaken.” 13 

To gather information necessary to comply with the requirements of law listed above, the NPFC 

sent the Claimant a letter via certified mail, requesting certain additional information in support 

of this claim, including financial documentation to indicate the extent of the Claimant’s losses 

and to verify all sources of the Claimant’s income.14 Among other items, the NPFC requested 

that the Claimant provide copies of federal tax returns or tax return transcripts for 2008, 2009 

and 2010.15 The NPFC also requested that the Claimant provide a record of income earned 

6 GCCF United States Coast Guard Report, 16 February 2012.

7 GCCF United States Coast Guard Report, 16 February 2012. 8 GCCF United States Coast Guard Report, 16 February 2012.

9 GCCF United States Coast Guard Report, 16 February 2012.

10 GCCF United States Coast Guard Report, 16 February 2012. 11 Optional OSLTF Claim Form, signed on 7 December 2011. 12 33 C.F.R. 136.103(a). 13 33 C.F.R. 136.235(a-b). 14 NPFC Request for additional information, 27 December 2011. 15 NPFC Request for additional information, 27 December 2011.

 
during the time that the Claimant was not working for his primary employer, a seafood 

processor. 16 However, the Claimant responded by stating that he could not provide copies of tax 

returns or bank account statements to verify the totality of his income.17 

Furthermore, the Claimant has indicated that he has earned a certain amount of unrecorded 

income as a result of the oil spill. In a phone conversation with NPFC staff on 19 March 2012, 

the Claimant indicated that as a result of the oil spill, he worked for the Vessel of Opportunity 

(VoO) program.18 However, the Claimant stated that he would be unable to provide verification 

of this income in the form of pay stubs, bank account statements or tax returns.19 

Because the Claimant has not provided tax returns or other documentation to demonstrate the 

totality of his earnings prior to and during the period in which he was allegedly affected by the 

oil spill, he has not shown whether or not he has been fully compensated for his alleged losses by 

payments previously made to him by both BP and the GCCF.

Should the Claimant chose to pursue this claim on reconsideration, the Claimant should provide 

documentation of all income earned from 2008 to present, specifically including any income 

earned as a result of the Deepwater Horizon oil spill. The Claimant should provide signed and 

completed income tax returns, as a verifiable record of all income.

This claim is denied because the Claimant has not provided financial documentation sufficient to 

demonstrate that he sustained an uncompensated loss in the amount of $18,700.00 as a result of 

the Deepwater Horizon oil spill.

Claim Supervisor: NPFC Claims Adjudication Division

Date of Supervisor’s Review: 3/26/12

Supervisor’s Action: Denial approved

Supervisor’s Comments:

16 NPFC Request for additional information, 27 December 2011. 17 Response to NPFC Request for Additional Information, received on 18 January 2012; PHONECON: NPFC Staff 

and the Claimant, 19 March 2012.

18 PHONECON: NPFC Staff and the Claimant, 19 March 2012. 19 PHONECON: NPFC Staff and the Claimant, 19 March 2012.