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BP Business Economic Loss Claim Appeal 2017-1165: Tourism Claimant Must Show Percentage of Revenue Derived From Tourism Activity Income

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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

This BEL Claimant was awarded $359,686.50 (pre-0.25 RTP). Claimant appeals raising two categories of errors by the Settlement Program (SP):
1. The SP erred in failing to award a 1.25 Tourism
designation;
2.The SP misclassified three sets of expenses.
Claimant asserts that correction of these errors would render an award of $553,995.54 (pre-1.25 RTP).
The Tourism Issue
Claimant provided aircraft ambulatory services out of its base in Brooksville, Florida (Zone D). The SP assigned NAICS Code 621910 – Ambulance Services. That
NAICS Code is not listed in Exhibit 2 of the Settlement Agreement. However, Policy 289 v.2 provides that the NAICS Codes listed in Exhibit 2 of the Settlement
Agreement are illustrative, not exhaustive. The Settlement Agreement defines Tourism as follows:
“Tourism means businesses which provide services such as attracting, transporting, accommodating or catering to the needs or
wants of persons traveling to, or staying in places outside their home community.”
Policy 289 v.2 says the SP shall have a decision “on the totality” of the circumstances.
After the issuance of the original Eligibility Notice, Claimant advised the SP that the failure to assign a Tourism designation was an error. Claimant provided the SP with the following examples of its transport of ill tourists:
“From Tampa, FL to Bedford, CT (chronic seizure disorder while on vacation 2008);
From New Orleans, LA to Manila, Philippines (mitral stenosis transfer from cruise ship 2008);
From Tampa, FL to Belfast, Ireland (broken hip on cruise ship 2008);
From Ft. Myers, FL to Chicago, IL (stroke victim while on vacation 2009);
From St. Petersburg, FL to Birmingham, AL (Alabama resident intra-cerebral bleed on vacation 2009);
From Sarasota, FL to New Bedford, MA (boating accident while on vacation 2009);
From Naples, FL to Frankfurt, Germany (heart attack while on vacation 2010);
From Sarasota, FL to Toronto, Ontario, Canada (renal failure while on vacation 2010);
From Brooksville, FL to Moncton, NB, Canada (atrial fibrillation while on vacation 2010);
From Key West, FL to Raleigh, NC (congestive heart failure symptoms on vacation 2011);
From Pensacola, FL to Philadelphia, PA (PA resident neck fracture 2011);
From Naples, FL to Charlotte, NC (NC resident diagnosed with aortic aneurysm 2011).”
The SP maintained its denial of a Tourism designation in the Post-Reconsideration Eligibility Notice.
Claimant filed this appeal and, for the first time, provided a list of all of Claimant’s emergency air ambulance flights between 2008 and 2011 where tourists visiting a Gulf Coast Economic Loss Zone were returned to the tourist’s home community aboard Claimant’s air ambulance aircraft. Claimant asserts that 77% of its flights between 2008 and 2011 involved transporting ill tourists back to their home community. The list claimant provided shows more than 200 such flights.
The panel asked the SP for a Summary of Review as follows:
“Request for Summary of Review Claimant asserts it is entitled to a “Tourism” designation. Attached to Claimant’s Initial Appeal Memorandum is “Exhibit A.”Apparently for the first time (in Exhibit A), Claimant provides a list of all of Claimant’s emergency air ambulance flights between 2008 and 2011 where ill tourists visiting a Gulf Coast Economic Loss Zone were transported back to their home communities. Claimant asserts that during that time period 77% of Claimant’s flights involved transporting ill vacationers back the their home community. Did the Settlement Program have this information prior to issuing the Post-Reconsideration
Eligibility Notice? If not, would the referenced information change the Settlement Program’s denial of a Tourism designation?”
The pertinent part of the Summary of Review states:
“In support of its Appeal, provided a list of its 2008 to 2011 flights that involved transporting passengers from the Gulf Coast Areas to their home communities. However, the list does not include the amount of revenue derived from each of these flights, which we would typically require to determine the percentage of revenue derived from transporting tourists visiting the Gulf Coast Areas as opposed to revenue derived from transporting passengers to and from other locations. As a result, we cannot determine the percentage of the claimant’s total 2010 revenue of $6,522,529 that is attributable to the 67 flights on the list. Therefore, has not provided
sufficient objective documentation to update the Industry Designation to tourism based on Policy 289 v.2.”
Based on the SP’s response and to enable the Claimant to provide the SP with the revenue derived from each of 200 or so flights listed, the panel is going to remand
this matter to the SP to allow Claimant a reasonable time to provide such information. Thereafter, the SP can review the matter and determine if a Tourism designation is merited.

 

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