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BP Business Economic Loss Claim Appeal 2017-94: Surveying Company Location May Not Use GPS Data to Show Where Work Performed (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


Claimant is a surveying company. The Settlement Program determined that documentation was required to apply the Customer Mix Test in association with this claim.
It is Claimant’s position that the nature of the work it performs (surveying) requires the Settlement Program to accept customer mix documentation showing the location of the work carried out by Claimant on behalf of its customers, as Claimant most often surveys land that does not have municipal addresses. For certain of the properties it had surveyed, Claimant provided the location data in the form of GPS, or latitude/longitude coordinates. Nevertheless, the claim was denied without considering the GPS data.
Claimant appeals, and asks that the Appeal Panelist remand this claim to the Settlement Program with instructions to evaluate the GPS and latitude/longitude data
provided in Claimant’s customer mix documentation. BP maintains GPS data is not one of the four types of accepted documentation listed for the Customer Mix Test, as it does not show the location of Claimant’s customers, the very purpose of the exercise.  This position correctly reflects the language of the Settlement Agreement, which has been uniformly interpreted to refer to the physical location of the customer, not where work might have been performed by the customer.
Claimant’s focus on the physical location of the performance of the work ordered by the customer was misplaced. Claimant also referred to correspondence with the Claims Administrator’s representatives and Program Accountants to make as estoppel argument. Although there was a vague reference to an alleged telephone call that, if accurately reported, may have raised an ambiguity; all of the written materials generated by staff representatives maintained that GPS data for where the work
was performed was outside of the Settlement Agreement.
Based upon the foregoing, the Denial of the Claims Administrator is hereby upheld.

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