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BP Business Economic Loss Claim Appeal 2017-1273:Separate Claims Allowed for Separate But Related Entities

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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

Claimant, a Zone D airport-based service entity, appeals the Program’s denial of its BEL claim. It focuses its appeal on the argument that in its amended claim form, it filed the claim on behalf of a separate “facility” as allowed under Exhibit 5 of the Settlement Agreement as interpreted by Policy 467. Specifically, in order to qualify as a separate “facility” under the Agreement, a claimant must satisfy all of the following three requirements: (a) a separate and distinct physical structure or premises; (b) owned…or operated by [claimant]; (c) at which it performs or manages its operations.
Concerning the “separate physical structure” requirement, Claimant maintains that the subject amended claim is only for its Fuel Facility, an entity that maintains separate P&Ls and is located about two miles from Claimant’s other operation (a Gulfstream jetservicing enterprise) at the subject airport. Claimant notes that the Fuel Facility has a separate legal description and street address and is obviously located in a separate building from its Gulfstream jet facility two miles away.  It further explains that the Fuel Facility was originally leased by its owner to a third party, but when Claimant succeeded to that lease, a consolidated lease was entered into with the owner that included both the Fuel Facility and the Gulfstream jet facility. That lease provided separate legal descriptions for the two buildings and provided for a separate computation of rent based upon the separate business lines of the two operations.
Claimant does not believe there should be any issue with qualifying for the two remaining prongs of the “Facility” definition, as it certainly “operates” the Fuel Facility, at which it “performs…its operation.” It seeks the reassertion of its BEL claim exclusively on behalf of the Fuel Facility.
In opposition, BP asserts that the two operations are located “on a single airport campus,” thus allegedly failing to satisfy the “separate and distinct physical structure” requirement. Additionally concerning this requirement, BP asserts that on its website the Claimant lists only one address, and that in its original claim form it “admitted” to only one Facility.
As noted in reply by Claimant, the fact that the two operations are located two miles apart in separate buildings undermines BP’s argument of “same airport campus.” Additionally, the fact that Claimant chose to amend its claim form to convert its claim to a single Facility claim creates no “admission” as to its original claim. Lastly, this panelist finds no controlling relevance in the fact that Claimant chose to place a single address on its website.
Especially in the claimant-friendly spirit of this Settlement Agreement, this panelist finds that Claimant has come forth with sufficient documentation to entitle it to assert a separate claim for its Fuel Facility under the auspices of Exhibit 5 and Policy 467. As such, the matter is remanded for further handling in accord with this
decision.

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