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BP Business Economic Loss Claim Appeal 2016-688: Restaurant, Marina, both on same parcel, should be treated independently


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 the denial of its BEL Claim. The Claim was denied for failing to satisfy Causation.

Claimant owns a water front parcel of land in Florida. Located on this parcel are two separate, physical structures: a marina and a restaurant. They each have their own address. Claimant maintains separate books for each.

Claimant filed as a Multi-Facility Business. This Claim was filed for the marina. The Settlement Program concluded that Claimant did not qualify as a MultiFacility Business, as both structures were located on the same parcel. Thus, the marina and the restaurant were consolidated. The combined financials failed to meet Causation. (Claimant contends that the marina would meet Causation if processed as a separate Facility.)

Claimant argues on appeal that nothing in the Settlement Agreement, or in Policy 467, prohibits multiple facilities from being located on the same parcel. Section I of Exhibit 5 defines “Facility” as a “separate and distinct physical location of a Multi-Facility Business at which it performs or manages its operation.” Policy 467, Part IV (A) defines a Facility as “(a) A separate and distinct physical structure or premises; (b) Owned, leased or operated by the Business Entity; (c) At which the Business Entity performs and/or manages its operations.”

Neither of the above definitions mention “parcel.”

Policy 467, Part IV (C) states that the “The Claims Administrator uses the street address of the physical structure to determine the location of a Facility.” Here, the marina and the restaurant have different addresses. Again, nothing in this section mentions “parcel.”

BP, and perhaps the Settlement Program, points to Policy 467, Part V, which is entitled “Examples of What Constitutes a Facility for Specific Categories of Entities.” Part L of this section deals with “Automobile Dealership with Service Department:”

“An automobile dealership with more than one department, including but not limited to sales, service, parts, and/or financing departments, that is owned . . . by the same Business Entity will typically be considered one Facility. This rule applies whether the various departments are in the same physical building or in separate physical buildings on the same parcel of real property.”

BP correctly notes that this section does refer to parcel. Thus, by analogy, BP argues that the restaurant and the marina are located on the same parcel, that both are “departments” of the marina, and hence both should be treated as one Facility.

This Panel disagrees with BP. Unlike an automobile dealership, where all of the departments are interconnected with the singular purpose of selling and servicing new and used automobiles, the marina and restaurant in the instant Claim are standalone businesses. While it is probable that many of the boat owners who dock at the marina dine at the restaurant, the restaurant is open to the general public, not just boat owners who dock their boats at the adjacent marina. This Panel suspects that most of the restaurant’s customers do not own boats that are docked at the marina. An examination of the Google reviews for the restaurant suggests that many of the diners are not connected to boats docked in the marina. It is true that the restaurant is advertised on website. But so is a nearby museum and a nearby theater. Additionally, the restaurant has its own independent website, a separate address, and a separate phone number.

Both the marina and the restaurant each meet the definition of a Facility. This Panel disagrees with BP’s argument that the marina and the restaurant should be treated in the same manner as the sales department and the service department of an automobile dealership. As such, the matter is remanded with instructions to process the marina as a separate Facility.

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