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BP Business Economic Loss Claim Appeal 2017-1442: Commercial Property Lessor Fails Customer Mix Test

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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

The Claims Administrator denied the BEL claim of this commercial property lessor in Naples, Florida (Zone D). One of the matching criteria of Policy 495 was triggered. Although Claimant satisfied the mathematical portion of the Modified V-Test, the claim was denied based on the failure to satisfy the Customer Mix Test. Claimant appeals.
On appeal, Claimant argues that the Settlement Program erred in its application of Policy 495. Claimant appears to be arguing that the application of Policy 495 caused it to fail causation.
De novo review does not support Claimant’s contention. To the contrary, the record reflects that none of the matching methodologies of Policy 495 were applied by the program accountant. Rather, the problem that derailed the claim was Claimant’s inability to pass the Customer Mix Test. In the Calculation Notes, the program accountant explained the application of the Customer Mix Test:
Per Policy 345 v.3, if a Claimant with a BEL, or Start-Up BEL claim is the owner of a commercial property,
the location of that Claimant’s customers shall be considered to be the location of the leased space. As long as
the Claimant has no other source of revenue, all of the Claimant’s customers will be listed as local customers
in the same economic zone, and there will be a 0% increase or decline inbusiness. The Claimant will not pass
customer mix test.
A thorough review of the record also fails to disclose any tenant lists, addresses or other information or data upon which the Customer Mix Test could be performed.
For the foregoing reasons, Claimant’s appeal is without merit. The Claims Administrator was correct in denying this claim. Denial affirmed.

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