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BP Business Economic Loss Claim Appeal 2015-1317: “Billing Services” as fixed expense

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The following is an Appeal Panel Decision issued pursuant to Section 6 of the BP Deepwater Horizon Economic & Property Damages Settlement Agreement and the Rules Governing the BP Appeals Process. Links may have been added to assist the reader. The original decision may be found here, as well as a glossary of BP Settlement terms.


BP appeals a BEL award, pre-RTP, of $117,185.40 to a Tampa, Florida medical practice on a single preserved basis, questioning the classification as Fixed of the expense item entitled “Billing Services.”

Citing its now traditional common law jurisprudence in a brief memorandum, appellant argues as it has on many prior occasions that such an expense logically varies with the volume of patients treated, and therefore is the classic Variable expense. It proposes a reduction in the award by $5893.00, which it concludes without explanation is the alleged pre-RTP difference in the award were the said expense converted to Variable status.

If BP’s brief was short, it is the Magna Carta compared to the one-paragraph response by Claimant’s counsel, who makes no substantive argument whatsoever, but merely represents that after reviewing the record, it feels that the award was appropriate and should be sustained.

With this paucity of argument at his disposal, this panelist performed the required de novo review of this record. Nothing in the Contact Notes or elsewhere indicated any discussion or contoversy over the referenced expense item. Reference to Ex. 4D of the Settlement Agreement could provide fodder to the positions of either party. Whereas “Billing Services” could be deemed “Contract Labor”, which is decreed to be Variable in nature, it could just as easily be deemed either “Professional Services” or “Contract Services” or even “Computer and Internet Services,” each of which is deemed Fixed under the negotiated terms of Ex. 4D.

Given the broad discretion ceded to the program vendors, this panelist, while hesitating to reward Claimant’s counsel for not doing its job, must nevertheless choose its Final Proposal which affirms the award in its entirety.

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