CLAIM SUMMARY/DETERMINATION FORM

Claim Number N10036-1480

Claimant Ms. Delania Falgout

Type of Claimant Private (US)

Type of Claim Loss of Profits and Impairment of Earning Capacity

Amount Requested $66,867.27

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 11 October 2011, Ms. Delania Falgout (the Claimant) presented a claim to the Oil Spill 

Liability Trust Fund (OSLTF) seeking $66,867.27 in loss of profits and impairment of earnings

capacity allegedly resulting from the Deepwater Horizon oil spill.1

The Claimant began working at Eastway Seafood-West in Houma, Louisiana in October 2009.2 

The restaurant was sold on 13 April 2010, and the Claimant was promoted by the new 

management in June 2010 and then again in October 2010.3 However, the Claimant alleged that 

the oil spill caused a loss of business at the restaurant, which caused the Claimant’s pay to be 

reduced in December of 2010, and eventually resulted in her lay off in March of 2011.4

The Claimant calculated her losses by taking the average of her weekly gross pay check and 

multiplying by 52, to calculate a yearly expected income of $13,373.45.5

 The Claimant then 

multiplied this number by five, to claim a five year loss in the amount of $66,867.27.6

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 Section 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, dated 19 September 2011.

2 Document, “Time Line Statement.”

3 Document, “Personal Statement.”

4 Document, “Time Line Statement.” 5 Spreadsheet showing working hours, pay rate, gross pay, 4/16/2010 – 3/22/2011. 6 Spreadsheet showing working hours, pay rate, gross pay, 4/16/2010 – 3/22/2011.

 
(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, dated 19 September 2011;

• GCCF Denial Letter on Interim Payment/Final Payment Claim, 16 April 2011;

• Letter from Matt Folse regarding effects of the oil spill on the Claimant’s income, 10 

December 2010;

• Unemployment application, submitted on 20 March 2011;

• Document, “Time Line Statement;”

• Document, “Personal Statement,” 9 September 2011;

• Eastway Seafood West, Inc. Payroll Summary, 4/1/2010 – 4/30/2010;

• Spreadsheet showing working hours, pay rate, gross pay, 4/16/2010 – 3/22/2011;

• Employee Pay Stubs, 2010, 2011;

• 2008 Federal/State Tax Return Receipt;

• 2008 Form 8879, showing adjusted gross income of $13,573.00;

• 2009 W-2 Wage and Tax Statement, showing earnings of $1,696.48;

• 2000 W-2 Wage and Tax Statement, showing earnings of $8,976.00;

• 2000 Form 8453, showing adjusted gross income of $8,977.00;

• 2001 Form 8453, showing adjusted gross income of $10,097.00.
Prior to presentment to the NPFC, the Claimant presented a Full Review Final (FRF) claim to the 

RP/GCCF, seeking loss of profits and wages.7

 The Claimant was assigned Claimant ID 3485152 

and the FRF claim was assigned Claim # 9201730.8

 This claim was denied on 16 April 2011.9

On 11 October 2011, the Claimant presented this claim to the NPFC, seeking loss of profits and 

impairment of earnings capacity in the amount of $66,867.27.10 The NPFC may properly 

adjudicate this claim to the extent that these damages have been presented to the GCCF in the 

Claimant’s FRF Claim # 9201730. Any damage amount now before the NPFC, which was not 

first presented to the RP/GCCF, is denied for failure to make proper presentment.11

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 lost profits or impairment of earnings, the Claimant must demonstrate (1) that 

she sustained a loss or reduction in wages, and (2) that the loss or reduction was a result of the 

discharge or substantial threat of discharge of oil, caused by the Deepwater Horizon oil spill.

As an initial matter, only actual losses incurred, and not future losses, are compensable under 

OPA. 33 C.F.R. § 136.235 specifically states that “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 (emphasis added).” Therefore, any damages 

presented in this claim, which represent future losses, are denied. The remainder of this 

determination addresses losses incurred from the date of the oil spill, to the date that this claim 

was presented to the NPFC on 11 October 2011. 

The Claimant alleged that she sustained a pay reduction in December of 2010, and was laid off in 

March of 2011 due to effects of the oil spill. However, in the months following the oil spill, the 

Claimant’s earnings were significantly higher than her pre-oil spill earnings. Prior to the oil 

spill, the Claimant was earning $7.25/hour and working approximately 27 hours each week.12 In 

June of 2010, following the oil spill, the Claimant was earning $7.65/hour, and her working 

hours had increased to approximately 38 hours per week.13 In October 2010, the Claimant again 

received a pay raise, and began earning a weekly salary of $369.23.14 

The Claimant’s pay did not begin to decrease until December of 2010, at which point, the 

Claimant’s pay had returned to a level that was approximately equal to what the Claimant was 

earning prior to the oil spill.

15 Based on this information, the Claimant has not demonstrated that 

7 GCCF Claimant Status, accessed on 17 October 2011.

8 GCCF Claimant Status, accessed on 17 October 2011. 9 GCCF Denial Letter on Interim Payment/Final Payment Claim, 16 April 2011.

10 Optional OSLTF Claim Form, dated 19 September 2011. 11 33 C.F.R. § 136.103(a). 12 Document, “Time Line Statement.” 13 Document, “Time Line Statement.” 14 Document, “Time Line Statement.” 15 The Claimant alleged to have earned $199.00 weekly prior to the spill, and $192.00 following a pay reduction in 

 
she sustained an actual loss of earnings until the point when the Claimant was let go from her 

position in March of 2011.

Furthermore, the Claimant has not provided any evidence to demonstrate that losses allegedly 

incurred by Eastway Seafood-West, were caused by effects of the Deepwater Horizon oil spill. 

Therefore, the Claimant has not established a causal link between her losses and the Deepwater 

Horizon oil spill. 

According to the Claimant, the original owners of Eastway Seafood-West sold the restaurant in 

April of 2010.16 The Claimant has not provided documentation to show that the restaurant was 

actually profitable at the time it was sold; therefore it is not possible for the NPFC to determine 

that the restaurant only began to incur losses after the oil spill. Should the Claimant pursue this 

claim on reconsideration, the Claimant should present evidence to demonstrate that the restaurant 

did not actually begin to lose revenues until the months following the Deepwater Horizon oil 

spill and that such losses were a direct result of the oil spill as opposed to other economic factors. 

Furthermore, because this restaurant was under new ownership at the time of the oil spill, the 

Claimant should provide documentation to show that the losses incurred by the restaurant were 

due to effects of the spill, and were not associated with actions taken by new restaurant 

management.

Based on the information available to the NPFC, the Claimant has failed to demonstrate that any 

losses she incurred due to the loss of her position in March of 2011 were caused by the effects of 

the Deepwater Horizon oil spill.

This claim is denied because the Claimant failed to meet her burden to prove (1) that she 

sustained a financial loss in the amount of $66,867.27, and (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.

Claim Supervisor: NPFC Claims Adjudication Division

Date of Supervisor’s Review: 10/20/11

Supervisor’s Action: Denial approved

Supervisor’s Comments:

16 Document, “Time Line Statement.”