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BP Business Economic Loss Claim Appeal: Insurer Exclusion, Exhibit 18, Policy 480

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The Claims Administrator for the BP Deepwater Horizon Court Supervised Settlement Program (Program) denied a Business Economic Loss (BEL) claim on the basis that the Claimant is an excluded insurance-related entity under Section 2.2.4 of the Settlement Agreement:

“Any of the following types of Entity … are excluded … Insurance Entities, as identified in the NAICS codes listed on Exhibit 18, which include, by way of example, insurance carriers issuing disability, health, life, medical, property and casualty, title or other insurance; reinsurers; insurance agencies and brokerages; underwriting agencies or organizations; claims adjusters and processors; third-party insurance or fund administrators; or other insurance-related businesses.”

Claimant’s 2010 tax return listed a NAICS of 621399, not excluded by Exhibit 18. NAICS 621399 is described as “offices of all other miscellaneous health practitioners.” The Program, after reviewing the complete claim record and the substantive nature of the Claimant’s business, determined the proper NAICS code to be 54298, which is listed as an excluded insurance entity under Exhibit 18. 54298 is described as “all other insurance related activities–medical costs evaluation services.”

The Claimant filed a Notice of Appeal arguing that it should not have been reassigned an exclusionary NAICS code of 54298 and that 621399 was a more appropriate descriptor.

Claims Administrator Policy 480 Version 2 governs the determination of NAICS codes. Policy 480 v.2 supersedes Policy 288 which was controlling at the time this appeal was decided. The Appeal Panelist found that the Program properly exercised its discretion in reassigning the claimant NAICS 54298 when considering the totality of the Claimant’s business activities, including the following Sworn Written Statement from the Claimant:

“Our mission is to manage medical claims in the most effective way through health care assessment, planning, coordination, implementation and evaluation.”

Policy 480 was finalized on May 12, 2014. Since it has not been agreed upon by the parties (BP and Class Counsel), nor ordered enacted by the Court, Policy 480 is not binding on the Appeal Panelist. However, as a matter of practice, such a policy is instructive and persuasive:

“The Claims Administrator will review an Entity’s 2010 tax return and 2010 business permit(s) (if available) and all other evidence of the business activities of the Entity necessary to determine the NAICS Code that describes the Entity’s primary business activity. The NAICS Code used on the 2010 tax return or business license will not be considered conclusive, and the Claims Administrator will not apply any presumptions regarding the selection of the NAICS Code to classify the entity properly.” – Policy 480 v.2, enacted May 12, 2014

While the NAICS code used on the 2010 Internal Revenue Service filings will be considered, it is not necessarily determinative of the code the Program will assign to the Claimant.

This Appeal is styled 2014-288.

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