CERTIFIED MAIL-RETURN RECEIPT REQUESTED 5890/DWHZ 

Number: 7011 1150 0000 4636 3127 31 October 2011 

Primerica Financial Services 

Attn: Kirby F. Rhodes III 

153 Quebec Street

Houma, Louisiana 70364 

Re: Claim Number: N10036-1405 

Dear Mr. Rhodes:

The National Pollution Funds Center (NPFC) in accordance with the Oil Pollution Act of 1990, 33 U.S.C. 

§ 2701 et seq. (OPA) and the associated regulations at 33 C.F.R. Part 136, denies payment on your claim 

number N10036-1405 involving the Deepwater Horizon oil spill. Please see the enclosed Claim 

Summary/Determination Form for further explanation. 

You may make a written request for reconsideration of this claim. The reconsideration must be received 

by the NPFC within 60 days of the date of this letter and must include the factual or legal basis of the 

request for reconsideration, providing any additional support for the claim. If, however you find that you 

will be unable to gather particular information within the time period, you may include a request for an 

extension of time for a specified duration with your reconsideration request. 

Reconsideration of the denial will be based upon the information provided. A claim may be reconsidered 

only once. Disposition of that reconsideration in writing will constitute final agency action. Failure of 

the NPFC to issue a written decision within 90 days after receipt of a timely request for reconsideration 

shall, at the option of the claimant, be deemed final agency action. All correspondence should include 

claim number N10036-1405. 

Mail reconsideration requests to:

Director (ca)

NPFC CA MS 7100 

US COAST GUARD

4200 Wilson Blvd, Suite 1000 

Arlington, VA 20598-7100 

Sincerely,

Claims Adjudication Division

National Pollution Funds Center

U.S. Coast Guard 

Enclosures: (1) Claim Summary/Determination Form 

U.S. Department of 

Homeland Security

United States

Coast Guard

Director

United States Coast Guard

National Pollution Funds Center

NPFC CA MS 7100

US COAST GUARD

4200 Wilson Blvd., Suite 1000

Arlington, VA 20598-7100

Staff Symbol: (CA)

Phone: 

E-mail: o@uscg.mil

Fax: 202-493-6937
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 14 September 2011, Kirby F. Rhodes III, on behalf of Primerica Financial Services, (collectively, the 

Claimant) presented an Optional Oil Spill Liability Trust Fund (OSLTF) Claim Form to the National 

Pollution Funds Center (NPFC) seeking $25,000.00 in loss of profits and impairment of earnings 

capacity that allegedly resulted from the Deepwater Horizon oil spill.

The Claimant operates a Primerica insurance branch operating in the Houma, Louisiana region.1

 The 

Claimant asserted a loss of income from the Deepwater Horizon oil spill because residents in the region 

ceased purchasing and renewing insurance plans due to job related income loss.2 The Claimant indicated 

that he is issued a charge-back fee each time a client drops their insurance policy.3

 Further, the Claimant 

asserted a loss of income because he lost seven full-time agents including his top producer for the last two 

years due to the Deepwater Horizon oil spill.4 

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

Claimant totaled his losses from May 2010-October 2010 as being $19,786.005 and added $5,000.006 to 

represent the cost of losing the services of his top agent for a total of $24,786.00.7

 The Claimant then 

rounded this number up to $25,000.00.8

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).

1 Letter from the Claimant dated 07 September 2011.

2 Letter from the Claimant dated 07 September 2011.

3 Letter from the Claimant dated 07 September 2011. 4 Letter from the Claimant dated 07 September 2011.

5 Letter from the Claimant dated 07 September 2011.

6 Letter from the Claimant dated 07 September 2011.

7 Letter from the Claimant dated 07 September 2011.

8 Optional OSLTF Claim Form received 14 September 2011.

Claim Number N10036-1405

Claimant Primerica Financial Services 

Type of Claimant Business 

Type of Claim Loss of Profits and Impairment of Earnings Capacity

Amount Requested $25,000.00

 
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, received 14 September 2011;

- Letter from the Claimant dated 07 September 2011;

- GCCF Denial Letter dated 22 April 2011;

- Trend Track Report for Kirby Rhodes and Socorro Bernard;

- Letter from the Claimant discussing his claim;

- Photocopies of the Claimant’s Louisiana Personal Driver License (unreadable) and Social 

Security card;

- 2008 Form 1040 Federal Tax Return (incomplete);

- 2009 Form 1040 Federal Tax Return (incomplete);
- 2010 Form 1040 Federal Tax Return.

Prior to presenting his claim to the NPFC, the Claimant filed an Emergency Advance Payment (EAP) 

claim with the GCCF for loss of earnings on 10 November 2010 in the amount of $24,000.00.9

 The 

Claimant was assigned Claimant ID # 3379540 and Claim # 446668. The EAP claim was denied on 30 

November 2010.10 Additionally, the Claimant filed a Full Review Final (FRF) claim with the GCCF for 

loss of earnings on 2 December 2010 in the amount of $40,000.00.11 The Claimant was assigned Claim # 

9063047. The FRF claim was denied by the GCCF on 22 April 2011.12

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 his claim before the NPFC, i.e., that due to the Deepwater Horizon oil 

spill, the Claimant lost clients as well as fellow agents and by extension income from his insurance 

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

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

N10036-1405 considers and addresses the earnings claimed in the Claimant’s claim presented to the 

responsible party, specifically; GCCF Claim #’s 446668 (EAP) and 9063047 (FRF).

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.

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 Emergency Advance Payment (EAP) claim with the 

GCCF for loss of earnings on 10 November 2010 in the amount of $24,000.00.13 The Claimant’s EAP 

claim to the GCCF included a sum certain of $24,000.00.14 The Claimant presented a Full Review Final 

(FRF) Claim for loss of profits and impairment of earnings capacity to the GCCF on 2 December 2010.15 

The Claimant’s FRF claim to the GCCF included a sum certain of $24,000.00.16 The Claimant then 

presented a claim for loss of profits and impairment of earnings capacity in the amount of $24,000.00 to 

the NPFC.17 Any claimed amount of damages exceeding $24,000.00 was not properly presented to the 

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

This claim is denied because the Claimant failed to prove that he suffered a financial loss due to the 

Deepwater Horizon oil spill. The Claimant asserted that, due to the Deepwater Horizon oil spill, his 

insurance business lost income as local residents ceased purchasing insurance policies and discontinued 

existing policies, forcing the Claimant to pay charge-back fees.18 Additionally, the Claimant asserted that 

he lost seven full-time agents at his Primerica branch, including his most effective employee, due to the 

oil spill.19 The Claimant, however, failed to provide sufficient evidence to connect his alleged loss to the 

Deepwater Horizon oil spill.

The Claimant did not provide documentation to prove that any existing clients cancelled previously 

purchased insurance plans due to the Deepwater Horizon oil spill. In regards to providing proof of policy 

9 Report from the GCCF, dated 6 October 2011. 

10 GCCF Denial Letter, dated 30 November 2010. 11 Report from the GCCF, dated 6 October 2011. 12 GCCF Denial Letter dated 22 April 2011. 13 Report from the GCCF, dated 6 October 2011. 14 Report from the GCCF, dated 6 October 2011. 15 Report from the GCCF, dated 6 October 2011. 16 Report from the GCCF, dated 6 October 2011. 17 Optional OSLTF Claim Form received 19 September 2011. 18 Letter from the Claimant dated 07 September 2011. 19 Letter from the Claimant dated 07 September 2011.

 
cancellations due to the oil spill, the Claimant stated that “I was asked to provide documentation showing 

specific clients that canceled their services so that they would have proof of loss.20 I am expressly 

prohibited from sharing any personal information with any non-affiliated company or institution, so I 

cannot do that or I would violate my client’s privacy as well as my contractual agreement with my 

company.”21 However, any contractual restrictions between the Claimant and its clients has no effect on 

the evidentiary burden imposed by 33 C.F.R. § 136.105(a) and 136.105(e)(6) for claims against the 

OSLTF. As well, the Claimant failed to provide documentation proving that any potential clients 

declined to purchase insurance policies due to the Deepwater Horizon oil spill; thus, all losses regarding 

potential clients are speculative and not compensable under OPA pursuant to the governing claim 

regulations at 33 C.F.R. § 136.235. Consequently, the Claimant has not shown that any alleged losses 

are due to the Deepwater Horizon oil spill as opposed to other factors such as cost-cutting decisions by 

existing or potential clients to reduce expenses or generally declining market conditions which has 

adversely affected them.

The financial documentation submitted by the Claimant in his submission to the NPFC also indicated the 

business was already struggling prior to the Deepwater Horizon oil spill. The Claimant’s business 

income went from $22,096.0022 in 2008 and reduced to $13,785.0023 in 2009. This pattern of a reduction 

in earnings continued into 2010 as the business income again fell to $10,548.00.24 This three year 

declination in business income shows year to year decreases of $8,311.00 from 2008-2009 and $3,237.00 

from 2009-2010, with the smaller annual decrease occurring from 2009-2010. Thus, the Claimant failed

to isolate a reduction in business income specifically due to the Deepwater Horizon oil spill.

This claim is denied because the Claimant failed to meet his burden to demonstrate (1) that there was an 

alleged loss in the amount claimed, (2) 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, and (3) 

that $25,000.00 as claimed had been properly presented first to the RP/GCCF pursuant to 33 CFR 

136.103(a) therefore all amounts in excess of $24,000.00 are denied accordingly.

Claim Supervisor: NPFC Claims Adjudication Division

Date of Review: 10/29/11

Supervisor’s Actions: Denial approved

Supervisor’s Comments:

20 Letter from the Claimant dated 07 September 2011. 21 Letter from the Claimant dated 07 September 2011. 22 2008 Form 1040 Federal Tax Return. 23 2009 Form 1040 Federal Tax Return. 24 2010 Form 1040 Federal Tax Return.