Anyone who suffers a financial loss as a result of the British Petroleum (“BP”) oil spill has the right to be compensated by BP and the responsible parties, under Federal law pursuant to the Oil Pollution Act of 1990 (“OPA”) and Florida law, pursuant to Florida’s “Pollutant Discharge Prevention and Control Act” set forth in Chapter 376 of the Florida Statutes. The OPA imposes strict liability for pollution removal costs and damages on the “responsible party” for a vessel or a facility from which oil is discharged. As such, BP is required to pay any and all removal costs to prevent, minimize and mitigate oil pollution after a spill. In addition to removal costs, BP is also liable for damage for injuries to a natural resource, injury to real estate or personal property (including economic loss resulting from that injury), loss of revenues from the use of natural resources, loss of revenues (including federal, state or local taxes) on the use of natural resources and real or personal property, loss of profits or impairment of earning capacity resulting from this pollution and the cost of providing additional public services during or after removal activities. In short, the law requires BP to fully compensate any injured party for any financial harm caused as a result of the spill. (Note: Transocean has also been designated as a responsible party, but apparently has denied responsibility because they have not advertised as required under the OPA nor have they set up a claims procedure.)
After being designated as a responsible party under the OPA, BP was required to set up a claims process for the identification, processing, and payment of removal costs and damage claims caused by the spill. BP has unlimited liability for removal costs (clean-up costs). The Deepwater Horizon Spill likely falls under OPA Section 2704(a)(3), which limits liability to $75,000,000 in addition to the cost of removal for an offshore facility.* However, exceptions to the limitation of liability under OPA exist where “the incident was proximately caused by– (A) gross negligence or willful misconduct of, or (B) the violation of an applicable Federal safety, construction, or operating regulation by, the responsible party, an agent or employee of the responsible party, or a person acting pursuant to a contractual relationship with the responsible party.” 33 U.S.C.A. § 2704 (c). The evidence collected against BP thus far suggests both gross negligence and the violation of applicable regulations may have occurred. In addition, OPA explicitly permits states to adopt laws imposing additional liability for oil spills above the liability limits established by the OPA. 33 U.S.C. § 2718. Consistent with this provision, Florida’s Pollution Discharge Prevention and Control Act, Fla. Stat. ch. 376.011-.17, 376.19-.21 (the “Florida Act”) imposes additional liability for oil spills. As one might expect, the non clean-up damages are expected to far exceed those liability caps. Fortunately, the OPA allows for all remaining claims to be paid directly from the Oil Spill Liability Trust Fund (“OSLTF”), which was also created with the enactment of the OPA in 1990 and which is funded by 5 cents per-barrel tax on imported/exported crude oil. It appears that the OSLTF is currently funded at around $1.4 Billion. That amount is there to pay for removal cost claims and damages which you cannot otherwise collect from BP because of the caps on their liability. In addition, legal scholars are also discussing the effect that potential BP criminal infractions may have (which may form a basis to lift the cap), and Congress is also debating legislative action to raise the limits upon the cap.
* OPA claimants may not face a limited fund because OPA uses the Oil Spill Liability Trust Fund (Fund) to ensure that every claim made pursuant to OPA will be paid in full. 26 U.S.C. § 9509; 33 U.S.C. §§ 2712, 2713. Section 2713(d) of the Act provides that “If a claim is presented in accordance with this section, including a claim for interim, short-term damages representing less than the full amount of damages to which the claimant ultimately may be entitled, and full and adequate compensation is unavailable, a claim for the uncompensated damages and removal costs may be presented to the Fund.” The maximum amount that may be paid by the Fund with respect to any single incident is $1 billion.
HOW DO I DOCUMENT AND MAKE A CLAIM?
If you have suffered any financial loss attributed to the oil spill, you need to document the claim on an ongoing basis. For example, if you are a hotelier and a customer calls to cancel the reservation, you need to specifically inquire as to the reason for that cancellation and document that cancellation. Similarly, any other losses suffered by anyone else on the Gulf Coast need to be documented on an ongoing basis. This documentation will be critical to supporting a claim made against BP in the claims process.
There are limitations on the time within which claims must be submitted. Damage claims against BP and/or under the OSLTF have to be presented within three (3) years after the date on which the damage connected to the spill occurred. A claim for removal costs must be presented within six (6) years after the date of the completion of the clean-up.
Any injured party can file a claim on their own behalf using the forms provided on the BP website. BEWARE, HOWEVER, some believe that the BP form may not comply with the United States Coast Guard regulations for presenting claims pursuant to the OPA 1990, which are necessary to have the claims paid. This is of particular concern if there is a likelihood that the claim will be denied, or if BP refuses to pay the full amount of the claim.
By mid-May, BP had paid only $1 Million for 2,000 Florida based claims. The claims they did pay related to wage losses, business interruption, rental losses, charter losses and income losses to shrimpers, fishermen, oystermen, crabbers and other individuals who subsist on the natural resources now affected by the spill.
SHOULD I JOIN A CLASS ACTION LAWSUIT?
The filing or joining a class action lawsuit, without first complying with the OPA’s out-of-court claims process, will likely result in the dismissal of the lawsuit and may jeopardize one’s right to have a claim paid from the Trust Fund (OSLTF). Individuals and businesses should carefully consider the course of action toward making a claim.
Our website, www.kirkpinkerton.com, contains a number of links that may be useful in further understanding the claims process, including a link directly to the BP claims website. We have taken the liberty of including links to a claim guide containing forms that can be downloaded and printed and used as well. Again, it is important that a claim be presented on a form which complies with the Coast Guard requirements. Please feel free to contact any of the attorneys below regarding a claim.
It is our hope that the information we have provided is useful to the community and that the links are helpful in educating those who may be impacted by this catastrophic oil spill. If we can be of any assistance, we would be happy to answer questions which may arise regarding this process as it unfolds.