CLAIM SUMMARY/DETERMINATION FORM

Claim Number N10036-1687

Claimant Joanna Mincarelli

Type of Claimant Private (US)

Type of Claim Loss of Profits and Impairment of Earning Capacity

Amount Requested $2,920.00

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 17 February 2012, Melinda Tindell, Esq., on behalf of Joanna Mincarelli, (collectively, the 

Claimant) presented a claim to the Oil Spill Liability Trust Fund (OSLTF) seeking $2,920.00 in 

loss of profits damages resulting from the Deepwater Horizon oil spill.1

The Claimant owns and operates a gift shop in Dunedin, Florida. The Claimant alleged that 

“[t]he Spill caused tourists to cancel their plans to Florida so business sales decreased which 

caused my hours to increase even though my income declined.”2 

The Claimant stated that she received a final payment from the GCCF compensating losses 

sustained by the business itself.3

 However, the Claimant alleges that losses to her personal 

income have not been sufficiently compensated, and therefore seeks $2,920.00 in loss of profits 

and impairment of earning capacity damages to compensate for alleged salary losses.

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 8 February 2012. 

2 Optional OSLTF Claim Form, signed on 8 February 2012.

3 PHONECON: NPFC Staff and the Claimant, 16 March 2012.

 
(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 8 February 2012;

• GCCF Denial Letter on Interim Payment/Final Payment Claim, 11 January 2012;

• Letter from Jacobs Accounting & Computers, Inc., 10 November 2011;

• Document listing gross income/profit, 2008, 2009, 2010;

• GCCF Full Review Final Payment Claim Form, seeking loss of profits damages of 

$2,920.00;

• 2010 Form 1040, showing business income of $9,660.00;

• 2010 Schedule C-EZ (Form 1040);

• 2010 Schedule E (Form 1040);

• 2010 Schedule SE (Form 1040);

• 2010 Schedule EIC (Form1040A or 1040);

• 2010 Form 8812;

• 2008 Form 1040, showing no business income, and total income of (-$31,645.00);

• 2008 Schedule D (Form 1040);

• 2008 Schedule E (Form 1040);

• 2008 Form 1045;

• Three Year Tax Comparison Worksheet;
• 2009 Form 1040, showing business income of $10,600.00;

• 2009 Schedule C-EZ (Form 1040);

• 2009 Schedule E (Form 1040);

• 2009 Schedule EIC (Form 1040A or 1040);

• 2009 Form 8812;

• 2009 Schedule L (Form 1040A or 1040);

• 2009 Schedule M (Form 1040A or 1040);

Prior to presentment of this claim to the NPFC, the Claimant presented an Interim Payment/Final 

Payment Claim to the RP/GCCF, seeking $2,920.00 in loss of profits and impairment of earning 

capacity damages. The Claimant was assigned Claimant ID 1637312. This claim was denied by 

the RP/GCCF in a letter dated 11 January 2012.4

 

On 17 February 2012, the Claimant submitted this claim to the NPFC, seeking $2,920.00 in loss 

of profits and impairment of earning capacity damages. OPA requires that a claimant first 

present a claim for costs or damages to the RP, prior to presentment to the NPFC.5

 Should the 

RP fail to issue on a determination on the claim within ninety days, or should the RP issue a full 

or partial denial on a claim, the claimant may present the same claim to the NPFC.6

Because the claim now before the NPFC has first been presented to the RP/GCCF and has been 

denied, the NPFC may fully adjudicate this claim for lost profits and impairment of earning 

capacity damages in the amount of $2,920.00. 

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.

Prior to presentment of this claim to the NPFC, the claimant presented a claim to recover losses 

sustained by her business, allegedly caused by the Deepwater Horizon oil spill.7 On behalf of 

the business, the Claimant accepted a Quick Pay Final Payment.8

 By signing this document, the 

Claimant has released to the RP/GCCF, any rights to additional recovery regarding this injury. 

The Quick Pay final claim form signed by the Claimant specifically applies to, 

all of a claimant’s “affiliates,” including a claimant’s “spouse, heirs, beneficiaries, 

agents, estates, executors, administrators, personal representatives, subsidiaries, 

parents, affiliates, partners, limited partners, members, joint venturers, 

shareholders, et al. (emphasis added). 9

 

4 GCCF Denial Letter on Interim Payment/Final Payment Claim, 11 January 2012. 5 33 C.F.R. § 136.103(a).

6 33 C.F.R. § 136.103(a).

7 PHONECON: NPFC Staff and the Claimant, 16 March 2012.

8 Quick Pay Final Claim Form and Release and Covenant Not to Sue (Business), signed on 26 December 2010.

9 Quick Pay Final Claim Form and Release and Covenant Not to Sue (Business), signed on 26 December 2010.

 
Because the Claimant is the owner of the business for which she accepted final payment, the 

Claimant released any rights to further recovery regarding injuries allegedly caused by the 

Deepwater Horizon oil spill, to the RP/GCCF. As stated in the release:

[r]eleased Parties means anyone who is or could be responsible or liable in any 

way for the Incident or any damages related thereto, whether a person, company 

or governmental entity, including . . . the federal Oil Spill Liability Trust Fund . . . 

Any payment from the Oil Spill Liability Trust Fund (the Fund) requires the acquisition of rights 

from the RP. Because these rights have been released by the Claimant to the RP/GCCF, the 

Claimant cannot also recover from the Fund. The subrogation of the Claimant’s rights to BP is 

made clear in the release by the following language:

[t]his Release is not intended to prevent any of the Released Parties from 

exercising their respective rights of contribution, subrogation, or indemnity under 

the Oil Pollution Act of 1990 (“OPA”) or any other law. As this Release is fully 

and completely resolving, together with all other Claims, Claimant’s claim under 

OPA, BP is hereby subrogated to any and all rights that Claimant has arising from 

the Incident.

This claim is denied because the Claimant has signed a Quick Payment Final Claim Form and 

Release and Covenant Not to Sue on behalf of her business, thereby precluding additional 

payment from the Oil Spill Liability Trust Fund.

Claim Supervisor: NPFC Claims Adjudication Division

Date of Supervisor’s Review: 4/16/12

Supervisor’s Action: Denial approved

Supervisor’s Comments: