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 Claimant appeals this decision, contending that his employer, owns and operates a resort community in Walton County, Florida.
BP cross-appeals raising two issues. First, BP asserts that the Claimant and his employer are excluded under Section 18.104.22.168 of the Settlement Agreement as Real Estate Developers. Because he is the CFO of the company which received a GCCF payment, BP also takes the position that the GCCF payment includes compensation for the Claimant’s individual loss. Hence payment of this IEL claim would constitute a double recovery according to BP.
In its initial memorandum, BP sharpens its argument by asserting that the Claimant is himself a real estate developer who his, in turn, employed by a real estate developer. To support this argument, BP relies on isolated portions of the record in which the Claimant listed “real estate development” as his line of work. However, Claimant’s 2010 tax return identifies his occupation simply as “real estate.”
In response to the Claims Administrator’s request for additional information, Claimant made reference to “the real estate development I work for.” BP urges that these statements by the Claimant are admissions that he is an excluded Real Estate Developer. Section 22.214.171.124 of the Settlement Agreement excludes Real Estate Developers, including any Natural Person or Entity that develops commercial, residential or industrial properties. BP argues with conviction that this definition requires Claimant’s exclusion from the Settlement Class.
Claimant responds that it is a real estate development which includes vacation rental units and four restaurants. Hence, Claimant draws a distinction between a real estate developer and an ongoing real estate development.
With regard to the employer’s GCCF payment, Claimant argues that the record contains no evidence indicating that he is an officer. Indeed, a close review of the record yields nothing suggesting that the Claimant is the President, Vice President, Secretary or Treasurer. His title of CFO describes his duties but does not, in itself, equate with that of a corporate officer.
Effective April 21, 2014, the Claims Administrator implemented final Policy 468 which addresses the determination of whether a BEL claimant is an excluded Real Estate Developer. Policy 468 sets out specific criteria to be used by the Claims Administrator including reference to the entity’s 2010 tax return, permits and licenses, revenue and expenses, etc.
Because this claim was presented and paid by the GCCF, this information is not contained in the record and BP makes no reference to it in its memorandum. Accordingly, I do not find sufficient record evidence upon which to overturn the Claims Administrator’s decision that the Claimant is entitled to compensation.
In response to Claimant’s direct appeal, BP argues that is not a tourism business because it fails to meet the familiar definition found in Exhibit 2 of the Settlement Agreement. BP supports this contention by reference to NAICS Code of 237210 for Land Subdivision which is not included among the enumerated tourism businesses.
Claimant, on the other hand, argues that the resort, where he works, is a 150 acre facility on the Gulf of Mexico focusing on vacation rentals and restaurants. Claimant submits credible Internet and public record information that supports this argument. Although this is not a real property claim, the location of Claimant as shown on the mapping tool verifies its location in a recognized vacation resort area.
It would be difficult for this panelist to reach any conclusion other than that the Claimant’s employer does, in fact, cater to the needs or wants of persons traveling to or staying in places outside of their home community. Thus, the Claims Administrator erred in failing to recognize and apply the Tourism designation and its corresponding RTP of 2.5.
The Claimant presented a Final Proposal of $3,449.25 with an RTP of 2.5. I find this to be the correct result, especially in light of BP’s proposal of $0. Accordingly, the award of compensation to the Claimant is affirmed but the failure to assign the Tourism designation is reversed. BP’s Cross-Appeal is denied. The Claimant is entitled to a final compensation amount of $3,449.25 with an RTP of 2.5.
It is so ordered.