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 29 September 2011, Bonnie Sue Martin, (the Claimant) presented an Optional Oil Spill Liability Trust 

Fund (OSLTF) Claim Form to the National Pollution Funds Center (NPFC) seeking $6,450.00 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 was employed by SunStream, Inc 

(SunStream) specifically at the GullWing Beach Resort in Fort Myers Beach, Florida.1

 The Claimant 

asserts that due to the Deepwater Horizon oil spill, the GullWing experienced a combination of customers 

cancelling existing reservations as well as a decreased demand for customers booking reservations.2 As a 

result, the Claimant asserts that she did not receive a salary bonus in 2010.3

 Additionally, the Claimant 

asserts that due to the oil spill SunStream reduced its contribution for their employee’s medical benefits.4

 

As a result of not receiving a bonus as well as having to contribute more to her health benefits, the 

Claimant asserts she suffered reduced income.

5

The Claimant did not provide an explanation regarding the calculation of her sum certain of $6,450.00. 

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 to the NPFC dated 17 September 2011. 2 Letter from the Claimant to the NPFC dated 17 September 2011. 3 Letter from the Claimant to the NPFC dated 17 September 2011. 4 Letter from the Claimant to the NPFC dated 17 September 2011. 5 Optional OSLTF Claim Form signed 17 September 2011 and received 29 September 2011.

Claim Number N10036-1456

Claimant Bonnie Sue Martin 

Type of Claimant Private (US)

Type of Claim Loss of Profits and Impairment of Earnings Capacity

Amount Requested $6,450.00 

 
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 her claim, the Claimant presented the following documentation to the NPFC:

- Optional Oil Spill Liability Trust Fund (OSLTF) Claim Form, signed 17 September 2011 and 

received 29 September 2011;

- Letter from the Claimant to the NPFC dated 17 September 2011;

- Letter from SunStream dated 11 August 2011;
- SunStream Income Statement for period ending 31 December 2009;

- SunStream Income Statement for period ending 31 December 2010;

- Spreadsheet containing pay period history for period 30 May 2010-26 December 2010;

- GCCF Denial Letter dated 11 August 2011;

- SunStream Earnings Statement for period ending 12 June 2011.

Prior to presenting her claim to the NPFC, the Claimant filed an Interim Payment Claim Quarter III 2011 

(ICQ32011) with the GCCF for loss of profits and impairment of earnings capacity on 04 August 2011 in 

the amount of $6,450.00.6

 The Claimant was assigned Claimant ID # 3535358 and Claim ID # 9430259. 

The ICQ32011 was denied on 11 August 2011.7

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

is the same as the subject matter of her claim before the NPFC, i.e., that due to the Deepwater Horizon oil 

spill, the Claimant did not receive a bonus in 2010 while also paying increased medical benefits costs. As 

a result, the Claimant suffered reduced income. The NPFC deems the Claimant’s denied GCCF claim to 

be properly presented to the RP and properly presented to the NPFC. Accordingly, this Claim Summary 

Determination for NPFC Claim N10036-1456 considers and addresses the earnings claimed in the 

Claimant’s claim as presented to the responsible party specifically; GCCF Claim # 9430259 (ICQ32011). 

NPFC Determination

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 Claim is denied because the Claimant failed to prove that the alleged loss in the amount of $6,450.00 

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.

The Claimant asserts that due to the Deepwater Horizon oil spill, the hotel she worked at, GullWing, 

experienced a combination of customers cancelling existing reservations as well as a decreased demand 

for customers booking reservations.8

 As a result, the Claimant asserts SunStream did not pay bonuses in 

2010.9

 Further, the Claimant asserts that SunStream reduced its contribution to employee health 

benefits.

10 As a result of not being issued a bonus as well as having to contribute more to her health 

benefits, the Claimant asserts she suffered reduced income.11 The Claimant, however, failed to prove a 

connection between the Deepwater Horizon oil spill and the lack of a bonus and the increased costs of 

health benefits.

Regarding the Claimant’s assertion that she was not paid a bonus due to the Deepwater Horizon oil spill, 

the Claimant failed to meet her burden to prove that the oil spill was the reason she did not receive a 

bonus. The Claimant included in her submission to the NPFC a letter from SunStream containing 

information on the company’s decision to withhold certain employee benefits in 2010.12 That letter, 

6 Report from the GCCF dated 11 January 2012.

7 GCCF Denial Letter dated 11 August 2011.

8 Letter from the Claimant to the NPFC dated 17 September 2011. 9 Letter from the Claimant to the NPFC dated 17 September 2011. 10 Letter from the Claimant to the NPFC dated 17 September 2011. 11 Optional OSLTF Claim Form signed 17 September 2011 and received 29 September 2011. 12 Letter from SunStream dated 11 August 2011.

 
coupled with additional information gathered from SunStream, indicated that SunStream set benchmarks 

for both hotel room revenue and occupancy percentage. 13 Employee bonuses14 would be authorized when 

the specific resorts met those benchmarks. In 2010, SunStream established a room revenue benchmark 

for GullWing of $3,471,664.00 despite only grossing $3,424,873.00 in room revenue in 2009. In order to 

determine the effect of the Deepwater Horizon oil spill on SunStream’s bonus structure, the NPFC 

undertook an analysis of the GullWing hotel that included financial information and room occupancy 

numbers from 2007-2010.15 The analysis showed GullWing experiencing a downward trend in room 

revenue beginning in 2009.16 Furthermore, even in the pre-oil spill months of January 2010-April 2010, 

GullWing experienced lower revenue sales, $1,565,801.00,17 than in the corresponding time period in 

2009 of $1,673,959.00.18 Thus, despite establishing a higher revenue benchmark for bonuses to be paid 

in 2010, by April 2010, GullWing was already on course to gross lower revenues than it had in 2009. 

Moreover, information obtained from SunStream stated that GullWing’s benchmark to qualify for 

bonuses in 2009 was $3,566,476.00 but that the actual revenue was only $3,424,873.00.19 Despite failing 

to meet the target, SunStream decided to pay bonuses anyway in 2009.20 In 2011, after the cessation of 

the oil spill, SunStream declined to pay, or even budget for, employee bonuses.21 Accordingly, 

SunStream’s assessment to pay bonuses in 2009, 2010 and 2011 were independent business decisions

based upon the discretionary nature of their bonus program. Thus, the Claimant failed to prove that 

SunStream ceased paying bonuses in 2010 due to the Deepwater Horizon oil spill.

It should also be noted that SunStream provided the NPFC with a list of five patrons who purportedly 

cancelled their reservations at the GullWing due to the Deepwater Horizon oil spill.22 Although the 

NPFC attempted to verify this information with each patron, the NPFC could only reach23 one of the five. 

In the conversation that followed, the NPFC was informed that the Deepwater Horizon oil spill was not 

the reason that the patron cancelled their reservation.24 

Regarding the increase in the Claimant’s payments for her medical benefits, the Claimant’s evidence that 

Sunstream decreased its payments for medical benefits due to the oil spill is unconvincing. Although a 

letter25 from SunStream alleges that a change in employee benefit contributions was made due to the 

Deepwater Horizon oil spill, the company fails to articulate a reason connecting the Deepwater Horizon 

oil spill with a change in benefit contributions. Rather, it appears that Sunstream made an independent 

business decision to reduce medical benefit contributions in order to reduce expenses for the company. 

Further, these saved expenses will continue well after the Deepwater Horizon oil spill, as SunSteam has 

not reverted to pre-2010 contribution levels and has no future plans to do so.26 Thus, SunStream’s 

13 Letter from SunStream dated 19 December 2011. 14 The benchmarks for occupancy percentage and revenue were irrelevant in SunStream’s decision to reduce its 

contribution to employee health benefits. See below for a full discussion regarding that aspect of the Claimant’s 

claim. 

15 NPFC GullWing Statistics. 16 NPFC GullWing Statistics. 17 NPFC Financial Calculations. 18 NPFC Financial Calculations. 19 Letter from SunStream dated 19 December 2011. 20 Letter from the Claimant to the NPFC dated 17 September 2011. 21 Letter from SunStream dated 19 December 2011. 22 Letter from SunStream dated 19 December 2011. 23 One of the listed phone numbers did not correspond to the listed patron. 24 PHONECON between the NPFC and 12 January 2012. 25 Letter from SunStream dated 11 August 2011. 26 Letter from SunStream dated 19 December 2011.

 
decision to decrease its contribution to medical benefits is not due to the Deepwater Horizon oil spill but 

rather an independent business decision which has significantly lowered premium costs to the employer.27

This claim is denied because the Claimant failed to meet her 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 Review: 1/23/12

Supervisor’s Actions: Denial approved

Supervisor’s Comments:

27 Letter from SunStream dated 19 December 2011.