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BP Business Economic Loss Claim Appeal 2016-1959:Claimant Qualifies Under “Canceled Contract” Provisions of Exhibit 4E

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.

The Settlement Program gave Claimant, a home building company, an award under the Settlement Agreement’s “Canceled Contract” provisions contained in Exhibit 4E. The “Canceled Contract” provisions of Exhibit 4E compensate claimants who can demonstrate, among other requirements, that they lost profits from a contract that was in place before April 20, 2010; was to be performed between April 21, 2010 and December 31, 2010; yet was canceled because of the spill.
Here, Claimant purports to have entered into two contracts to build homes in 2010 on properties for a person and that person canceled those contracts because of the Spill. In support of those contentions, Claimant submitted copies of what it says are the contracts that were canceled. Those contracts bear signatures of Claimant as the “Contractor,” and what purport to be signatures of the person as “Owner” of the properties on which the homes were to be built.
BP contends that there are significant questions regarding the authenticity of those signatures on the contracts at issue. BP submitted a report from a handwriting expert that concluded that “there is no handwriting evidence within the known signature samples from [Owner] which indicates that [Owner] prepared the questioned signatures,” that “the questioned signatures … may not be authentic signatures of [Owner],” and “that it is unlikely that the questioned 3 signatures are authentic signatures of [Owner].” BP asserts that “the significant questions regarding the authenticity of the crucial signatures on the contracts at issue here raised in this opinion must be addressed.” BP also contends it does not appear that the “Owner” was the “Owner” of the properties in 2010. Finally, BP asserts that Claimant submitted what he described as “emails”from the “Owner” that purportedly evidence that the construction contracts were canceled because of the spill, but those documents do not appear to be “emails.”
BP request that because “there are significant questions regarding this that the Settlement Program’s remand this claim to the Fraud Waste & Abuse department., and for purposes of this appeal, BP submits an Final Proposal of $0 “because the current record does not support an award.”
Claimant counters that BP is confused in that the alleged issue of property ownership has no impact on the validity of the claims, BP’s purported expert witness report is not only unpersuasive, but also inadmissible under the Federal Rules of Evidence, and is inconclusive on its face. Further, BP cannot get the relief they request—there can be no meaningful FWA investigation because of a possible conflict or bias created by their own submission. Claimant attached an affidavit of Claimant which set out that the title owner of the property and the “Owner” entered into a transaction whereby the title owner agreed to supply two empty lots he owned, and “Owner” agreed provide construction costs. They then contracted with Claimant to build two houses which they planned to rent and share profits. After the spill, “Owner” wrote Claimant cancelling the contracts.
Causation is presumed under 4B and Exhibit 4E, which is the“the exclusive compensation methodology for business claimants that provide appropriate documentation and which establish causation.” Therefore, says Claimant, the non-issue of ownership has no impact on the claim. Claimant further contends that the assertion by BP that the email cancellation sent by Claimant was not an email because it lacks “to” or “from” lines or some vague “formatting hallmarks” which BP claims are standard in all emails is without merit.
Given the vast array of email programs, email accounts and webmail services, Claimant contends that BP cannot seriously argue that all printouts of “emails” must have the “to” and “from” lines or some standard “formatting hallmarks.” More importantly, BP fails to acknowledge a common email practice – the use of attachments to emails. The cancellations are clearly letters which were created with a word processing program and attached to an email. The attachments were then opened and printed out. As to the handwriting expert report, Claimant asserts that it is subjective, vague and inconclusive, and is also inadmissible in Federal Court as it would flunk Daubert (509 U.S. at 593-94). Furthermore, says Claimant, inclusion of this un-cross-examined extraneous evidence has poisoned the well with respect to any appeals panelists who might have already reviewed it. The purported expert report was presented to the arbiter of fact without regard to any procedural due process or notion of fairness. Claimant moved the Appeals Coordinator to strikethe purported handwriting expert filed by BP.
Claimant arguments such as this appeal being inappropriate for remand, potential conflicts of interest if this claim is referred to FWA and possible prejudice if the Appeals Panel views the handwriting affidavit are unnecessary to reach in any depth due to this panelist finding that the record supports and reflects that the Claimant’s Final Proposal should be and is adopted.

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