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BP Business Economic Loss Claim Appeal 2016-1989:Separate Used Car Dealer Not Excluded Under Exhibit 5 and Policy 467 From Filing Separate Claim


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.

Claimant appeals its thrice denied BEL claim. The basis of denial was the Program’s application of Policy 467 (V) (L) and its language that separate departments of a car dealership, whether or not in separate buildings on the same parcel of land, will be considered one facility.
BP justifies the Program’s action by arguing broadly that it comports “to the economic reality” of Claimant’s business operation, since all of departments are in “the same location.” In support, it refers to a website where the dealership markets itself as maintaining a variety of automotive departments “at one convenient location.”
This panelist has carefully reviewed the record, the provisions of Exhibit 5 of the Agreement, and Policy 467. Nothing reviewed indicates to this panelist that the fact that this particular Claimant, the used car department of a car dealership, is necessarily disqualified from Program eligibility by the mere fact that the used car facility is in “the same location” as the dealership’s other departments. As pointed out by Claimant, the used car facility is located at a separate municipal address across the street from the new car sales department. The financial records of the used car department are kept separately from other departments, and it pays its own utility bills and
property taxes. Even if Policy 467(V)(L) were binding upon this panel, its language that multiple departments of a car dealership “will typically” be considered one Facility leaves room for exceptions to the rule.
This panelist feels that on this record, the used car department is such an exception. It is not only located in a separate building across the road from the new car dealership, but on a separate legal parcel of land, a fact that exceeds the language in Policy 467 of “separate buildings on the same parcel of land.”  The used car department certainly meets the Exhibit 5 requirement that a Facility be a separate and distinct physical structure owned, leased, or operated by a claimant at which it performs or manages its operations. Given the claimant-friendly spirit of the Settlement Agreement as expressed in Section 4.3.8, this panelist feels that there is a rational basis herein to justify the designation of Claimant’s used car department as a separate facility capable of asserting its own separate BEL claim. Accordingly, the matter is remanded to the Program for separate evaluation of the used car department’s financials and consideration of a separate BEL award to it.

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