Story first appeared on Bloomberg News -
Bill Floyd, owner of an upscale seafood restaurant near downtown Houston, is a poster-child for the type of damage claim BP Plc left out of its $8.5 billion settlement for the biggest offshore oil spill in U.S. history.
When the energy company’s blown-out Macondo well dumped more than 4 million barrels of crude oil into the Gulf of Mexico in 2010, Floyd saw his costs for fresh shrimp, crab and oysters almost double overnight while his sales flat-lined. A Business Interruption Insurance policy might have benefited this company.
“Ninety percent of our menu comes out of the Gulf,” said Floyd, whose eatery, Reef, was named the best seafood restaurant in the U.S. in 2008 by Bon Appetit magazine. “Our shrimp prices went through the roof while our increase in sales, which had been averaging about 20 percent each year, went almost dead.”
Floyd’s is one of thousands of businesses, banks and municipalities excluded from the settlement last March. Many of those left out stretch tens or hundreds of miles inland from the once-blackened coastlines. Next week, fault for the spill will be determined in a sprawling trial in New Orleans federal court, the first step for claimants like Floyd seeking what may total billions of dollars from the companies behind the accident.
But their path may be difficult, as BP has pledged to “vigorously” fight their claims. Lawyers for claimants said BP didn’t settle with them because it sees a chance of victory.
And in some cases, the U.K.-based company said in court filings, it may even argue U.S. businesses and governments benefited from the spill, claiming spending and taxes paid by cleanup crews exceeded the losses caused by the catastrophe that brought them there in the first place.
All victims whose claims were excluded from the settlement must prove the spill directly caused their physical or economic injury, as required under the Oil Pollution Act, which governs spill-damage compensation, legal experts said.
“Causation is the main hurdle, because the bulk of claims for economic loss are by people without physical damage,” said David Robertson, a University of Texas law professor who has advised lawyers leading the spill suits. “There’s a whole huge block of the economy that was heavily affected by the spill, and some of these are very large claims.”
U.S. District Judge Carl Barbier will preside over the Feb. 25 trial without a jury, under maritime law, which governs this phase of the litigation.
As the sole finder of fact, he will apportion fault for the explosion and spill among BP and subcontractors Transocean Ltd. (RIG), which owned and operated the Deepwater Horizon rig, and Halliburton Co. (HAL), which was responsible for cementing services. The subcontractors would only be responsible for punitive damages, based on Barbier's ruling that the project contract required BP to indemnify them for compensatory damages.
The judge’s findings of fault will be applied to subsequent trials where specific dollar-amounts for spill damages will be determined, including those on claims excluded from the initial settlement. Plaintiffs’ lawyers said those damages trials, unlike the phase beginning next week, will be heard by juries.
BP’s settlement addressed damages to waterfront property owners, coastal tourism and seafood-industry interests, as well as some medical injuries suffered by residents who worked in the spill or live within a mile of the beach.
Medical-injury claims from people living further inland, and economic-loss claims from industries such as offshore drillers hurt by a federal moratorium and Houston seafood restaurants like Reef, weren’t addressed by the accord. State and local governmental claims for lost tax revenues were also excluded from the deal.
“Oil and gas industry losses were directly and immediately caused by the spill, and that’s an excluded category,” Robertson said. “Yet BP has also settled with some bait-and- tackle shops that were pretty far inland.”
BP’s settlement assigned some value to economic-loss claims throughout Louisiana and Mississippi, with claim values decreasing the further away they were from the coast. In Texas and Florida, economic-loss claims were allowed only if they originated within a narrow coastal zone.
Reef is a 45-minute drive from the beach and outside that loss demarcation. So are owners of certain Mississippi coastal wetlands that were covered in oil during the spill, although similarly damaged properties in Louisiana were covered by the settlement, according to court papers.
“It looks like BP tried to resolve as many claims as it could for as little as it could as quickly as it could,” New Orleans lawyer Mike Stag, who represents about 3,000 spill victims, said of how the exclusions were determined.
“BP wants these claims sunk to the bottom of the ocean, like their oil,” Stag said.
Scott Dean, a spokesman for BP, said the company will fight the claims excluded from the earlier settlement, “including those based on the U.S. government’s decision to institute a drilling moratorium in the Gulf.”
Patrick Juneau, the court-appointed administrator for BP’s Deepwater Horizon Claims Center, said it paid a total of $1.5 billion in damage claims to 22,178 economic victims as of Feb. 19. The center, which administers the $8.5 billion settlement fund, is awaiting answers on another $500 million in compensation offered to victims, Juneau said. Reviews of all but about 30,000 of the 131,055 claims the center has received have been started, he said. New claims will be accepted until April 2014. Juneau said he can’t attach dollar amounts to the excluded claims because, by court order, he can only process claims that are included in the settlement.
To date, he said, he’s received more than 3,500 claims from victims excluded from the spill settlement, including 103 from the oil and gas industry, 249 from gaming firms, 61 from financial institutions, 43 from insurance companies and 170 from state and local governments.
“One of the biggest categories of excluded claims is losses tied to the deep-water drilling moratorium” imposed by the Obama administration after the spill, Stag said. They were specifically allowed by Barbier, the judge overseeing all BP spill-loss cases.
“Those claims will have substantial value, with all the rigs that were shut down and the onshore support-services demand that fell off as a result,” he said. “We’re talking billions of dollars in lost revenue and lost business.”
One offshore drilling company represented by Houston attorney Richard Mithoff suffered damage of as much as $250 million because of the spill, he said. The company, which he declined to name, lost favorable financing terms for a rig it was building at the time of the disaster, Mithoff said.
“These big offshore rigs can cost more than $1 billion, and my client had to go replace its financing when the credit market shut down” for offshore drilling companies when the spill began, Mithoff said.
“My client had no choice but to complete the financing at significantly higher rates,” he said. “We’re talking a difference of $200 million to $250 million.” His client hasn’t yet sued, he said.
Stag, who represents several banks alleging spill-related losses, said financial institutions are another large category of excluded claims. He also declined to name his clients.
“When the offshore business slows down and no lines of credit are being taken out for capital investment for ongoing drilling and everyone scales back, that’s going to have a substantial effect on banks’ revenues,” he said.
Stag said he represents a regional radio-communications company, which he declined to identify, that was selling its business when the deep-water drilling ban went into effect and killed the deal.
“That’s a $10 million to $20 million loss right there,” Stag said. “I wouldn’t be surprised if there’s another $4 billion to $8 billion in total spill-related losses out there. If we include all the moratorium-related losses, it might be even more than that.”
Also excluded from BP’s settlement are Gulf Coast residents with certain medical injuries who live more than half a mile off the beach or a mile inland from a wetland.
Michael Robichaux, a Raceland, Louisiana doctor, said he has treated scores of spill patients for “the exact same injuries” he treated in U.S. veterans of the Persian Gulf War. The injuries range from skin and eye irritations to chronic headaches, he said.
All of these patients were exposed to oil or toxic chemical dispersants used to break up the spill, including ones who live outside the settlement boundaries, Robichaux said.
“I’m treating patients with chronic illnesses that will affect them for the rest of their lives, and they’re not even included in what was negotiated with BP,” Robichaux said. “These patients and their injuries are screwed, and that’s the nicest thing I can say about it.”
Stag said he opted-out about 600 medical victims from BP’s settlement because the compensation offered was too low.
“A lot of health effects have yet to be seen,” he said. “The result is some of these people are going to die. It’s just a matter of how many.”
Following next week’s trial, claimants may pursue their claims individually, with the court’s determination of fault in hand. However, they will have to then prove they were injured, and that it was caused by the spill defendants.
Thomas McGarity, another University of Texas law professor, said the more directly a victim can prove his loss was caused by the spill, the better his chances of making BP pay.
“With businesses that can say they lost this particular deal with this direct economic harm, they may have a chance” at a trial, McGarity said.
BP can be expected to dispute claims from the excluded categories, Mithoff said, adding: “They’re putting that fight off for another day.”
The company said in court papers that it may try to prove that tax-revenue losses by some governmental entities and revenue-loss claims by some tourism businesses, such as casinos, were offset by increases in economic activity generated by BP’s cleanup crews.
Thousands of BP workers swarmed the coastline in 2010 and 2011 to clean up the spill, and BP said in court filings that spending by these workers largely replaced lost tourist dollars.
“I don’t think that argument will resonate well with a jury,” Stag said.
The case is In re Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico on April 20, 2010, MDL-2179, U.S. District Court, Eastern District of Louisiana (New Orleans).