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BP Business Economic Loss Claim Appeal 2017-741:Claimant’s Locations Satisfy the Definition of A “Facility”

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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 is an entity that operates children’s train rides at malls across the country, appeals the denial of its BEL claim. The Settlement Program dismissed
claim on the basis that the location at issue in this case did not constitute a facility as that term is defined under the Settlement Agreement.
Claimant apparently presented three BEL claims for three different locations. As pointed out, the Program recognized the claim for one of these locations but dismissed claims for the other two, including the site involved in the immediate case. The only discernible difference between these claims is that the eligible location operated under a lease agreement while the other two operated under license agreements.
A ” Facility” is defined in the Settlement Agreement as a “…separate and distinct physical location of a Multi-Facility Business at which it performs or manages its operations.” See Exhibit 5. Policy 467 elaborates further on this description. This provision provides , in order to satisfy the Facility requirement: 1) there must be a separate and distinct physical structure or premises; 2) owned, leased or operated by the business; 3) at which the entity performs and/or manages its operations.
Claimant has demonstrated that the business location in the immediate case is in a separate and distinct physical structure or premises, since the operation occurs in a mall miles apart from the other locations. Additionally, this location is “operated” by the business entity. At the mall location in question, Claimant has a ticket booth that receives money from customers and issues tickets to ride the train. Claimant has agents who accept payments from customers, issue tickets and take customers on train rides. Further, agents are managed and supervised by managers , not by the shopping center’s manager. This arrangement is analogous to the circumstances in Claim # XXX decided by the En Banc Appeals Panel where a Claimant took over a portion of a hospital to provide services to patients. The Panel held ” (Claimant)
contracted for the use of a specific physical location where its employees exclusively directed and performed Claimant’s services on specific days. While (Claimant) does not own the location, by performing those services exclusively in the designated rooms at designated times, the Appeal Panel concludes that these locations were “premises” being “operated” by the Claimant at those designated times, as contemplated by Policy 467.”
As in Case #XXX, Claimant in this instance took over a designated portion of the premises where it performed its operations. Moreover, there is no basis to differentiate between a lease agreement and a license arrangement. The license agreement herein provided for monthly rent for a 1 year rental period and granted
the right to use certain areas at the shopping center for ticket booths and train ride paths. Regardless of the nomenclature, the usage agreement was the functional equivalent of a lease.
This ruling is consistent with the decision in Claim #XXX and also Claim #YYY which evaluated the exact same circumstances for this claimant at another location.
There is a finding herein that location in this case satisfies the definition of a Facility. Accordingly, Claimant’s appeal is upheld and this matter is remanded for further processing.

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