Florida Oil Spill Damages - BP Oil Spill

Oil Spill Class Action in Florida

Since April 20, 2010 millions of gallons of BP’s oil has been gushing out of control from its wellhead at the Deepwater Horizon Oil Offshore Oil Rig into the Gulf of Mexico negatively impacting Florida’s Gulf Coast citizens, businesses and properties.   

Those having claims to pursue against BP include but are not limited to:

• Marinas (boat slips, boat dry storage, fuel sales, ship store sales, restaurant sales)
• Marine and saltwater products retailers and wholesalers related to boat sales, boat engine sales, boat trailer sales, boat repair services, fishing product sales, bait and tackle sales, fishing clothing sales… (loss of income and profits)
• Rental shops (boats, kayaks, jet skis, sailboats, scuba diving gear, snorkeling gear) 
• Hotels, Resorts and Restaurants (loss of tourism customer profits; stigma for seafood restaurants causing loss of customers and sales)
• Seafood retailers and wholesalers (loss of customers and profits) 
• Fishing charter boat owners and operators
• Diving charter boat owners and operators
• Dive shop owners and operators (scuba diving and skin diving equipment sales, lessons and dive charters)
• Surf shops (surfboards, surf gear sales and rentals, cancelled surf camps and surf lessons)
• Beach umbrella chair rental owner/operators (loss of customers and income)
• Bar owners and operators (loss of customers and tourism sales)  
• Fishing tournament operators and directors (cancellations, loss of income)
• Fishing pier owners and operators ( loss of customers, lost income and profits)
• Travel agents (reservation cancellations, reservation decline, lost income and profits)
• Grocers (lost tourist sales and lost tourist income and profits)
• Banks (loss of loan income due to downturn in tourism, decreased sales and development)
• Real estate management companies (lost tourism bookings and sales)
• Any other business along the Florida and Alabama Gulf Coast experiencing lost income or lost profits caused by the BP Oil Spill ( the list is endless of who is affected)

BP Funds $20 Billion Oil Spill Liability Fund

On June 16, 2010, BP agreed to fund a $20 billion oil spill damages fund to compensate those harmed by the Gulf Coast Horizon BP Oil Spill. If your business of property was damaged due to the BP oil spill, you have three years from the date that the damage becomes reasonably discoverable to file a claim.

The $20 billion oil spill liability fund will be managed and administered by businesses and people who file properly documented claims with the claims handlers appointed by the President of the United States of America. The chief fund administrator is Kenneth Feinberg, appointed by President Obama in June, 2010. The details of exactly how claims will be received and processed by Mr. Feinberg and exactly how, when and where disputed damages claims will be mediated, arbitrated or litigated has not yet been decided. Initially it appears that Mr. Feinberg will set up a team of “special masters” (informal judges so to speak) and claims handlers to accept properly documented claims for consideration of expeditious payment. Whether that process will be governed under a special set of rules and regulations not yet promulgated is unclear to every American citizen at this time. The administration of that fund is still in the early stages.

FLORIDA HAS ITS OWN POLLUTION ACT INDEPENDENT OF THE FEDERAL OIL POLLLUTION ACT AND IT IS AN EXCELLENT REMEDY FOR MANY FLORIDA RESIDENTS AND BUSINESSES AFFECTED BY THE BP OIL SPILL
Florida Statutes 376 POLLUTANT DISCHARGE PREVENTION AND REMOVAL (Florida State Law Remedy)
376.205  Individual cause of action for damages under ss. 376.011-376.21.--The remedies in this act shall be deemed to be cumulative and not exclusive. Nothing in this act shall require pursuit of any claim against the fund as a condition precedent to any remedy against a responsible party. Notwithstanding any other provision of law, any person may bring a cause of action against a responsible party in a court of competent jurisdiction for damages, as defined in s. 376.031, resulting from a discharge or other condition of pollution covered by ss. 376.011-376.21. In any such suit, it shall not be necessary for the person to plead or prove negligence in any form or manner. Such person need only plead and prove the fact of the prohibited discharge or other pollutive condition and that it occurred. The only defenses to such cause of action shall be those specified in s. 376.12(7). The court, in issuing any final judgment in such action, may award costs of litigation, including reasonable attorney's and expert witness fees, to any party, whenever the court determines such an award is in the public interest.

376.031  (5) Unless the context clearly requires otherwise, the term: "Damage" means the documented extent of any destruction to or loss of any real or personal property, or the documented extent, pursuant to s. 376.121, of any destruction of the environment and natural resources, including all living things except human beings, as the direct result of the discharge of a pollutant.

"Responsible party" means:
Vessels. In the case of a vessel, any person owning, operating, or demise-chartering the vessel. "Vessel" includes every description of watercraft or other contrivance used, or capable of being used, as a means of transportation on water, whether self-propelled or otherwise, and includes barges and tugs. (Here that includes BP)

Offshore Facilities. In the case of an offshore facility, other than a pipeline or a deepwater port licensed under the Deepwater Port Act of 1974, 33 U.S.C. ss. 1501 et seq., the lessee or permittee of the area in which the facility is located or the holder of a right of use and easement granted under applicable state law or the Outer Continental Shelf Lands Act, 43 U.S.C. ss. 1301-1356, for the area in which the facility is located, if the holder is a different person than the lessee or permittee, except a federal agency, the state, a municipality, a commission, a political subdivision of any state, or any interstate body, that, as the owner of the facility, transfers possession and right to use the property to another person by lease, assignment, or permit. (Here that includes BP)

"Discharge" includes, but is not limited to, any spilling, leaking, seeping, pouring, emitting, emptying, or dumping which occurs within the territorial limits of the state or outside the territorial limits of the state and affects lands and waters within the territorial limits of the state. (Here that means the Deepwater Horizon Oil Spill)

Pollution of waters and lands of the state prohibited.--The discharge of pollutants into or upon any coastal waters, estuaries, tidal flats, beaches, and lands adjoining the seacoast of the state in the manner defined by ss. 376.011-376.21 is prohibited (Here that means BP’s oil polluting the Florida state waters within the Gulf of Mexico, Florida inland bays, bayous, rivers, waterways and Florida waterfront properties)

THE FEDERAL GOVERNMENT ENACTED THE OIL SPILL POLLUTION ACT OF 1990 WHICH IS ANOTHER REMEDY FOR MOST FLORIDA RESIDENTS AND BUSINESSES

OPA (Oil Pollution Act of 1990- Federal Law Remedy)

U.S. Code TITLE 33--NAVIGATION AND NAVIGABLE WATERS
CHAPTER 40--OIL POLLUTION

OPA : FEDERAL OIL POLLUTION ACT

Under the federal law, any person or business who loses income or profits due to an oil spill may file a claim for loss of income and profits against the responsible party who caused the pollution. President Obama has already designated BP as the “responsible party” under OPA. To recover your damages under the OPA against BP, you must be able to prove that:

1.   Oil pollutions caused the damage
2.   The damage resulted from the discharge or substantial threat of discharge of oil
3.   The discharge or substantial threat of discharge occurred in United States navigable waters; and
4.   The discharge, or substantial threat of discharge, came from an identifiable facility or vessel.

You or your business are entitled to lost income and lost profits as well as the devaluation or destruction of your real or personal property.
After an OPA claim is properly filed giving notice of the losses to BP, then BP has 90 days to pay the amount claimed before an OPA lawsuit can be filed in court.
Real property owners may also opt into the Oil Spill Liability Trust Fund, which is focused mainly on the claims for the cost of removing the oil.
Under OPA, BP may be able to claim a $75 million cap on OPA claims damages. But there are exceptions to that cap and it appears very likely that the exceptions will apply to lift that cap. In order to cause a judge to lift the cap, claimants must show that the oil spill was caused by,

• gross negligence or willful misconduct of the responsible party, or
• a violation of a Federal safety, construction, or operating regulation  by either the responsible party, an agent or employee of the responsible party, or a person acting pursuant to a contractual relationship with the responsible party.

If one of those exceptions can be proven to a judge or jury then the $75 million OPA cap will have no effect on limiting the amount of the total OPA claims BP must pay.

BP INTERIM CLAIMS PROCESS-BEWARE!!!

BP has provided some people and businesses with a self administered interim claims process monitored and decided exclusively by BP employees and agents. Many of those interim claims are not being paid out for the full amount of the loss or harm sustained by the person or business filing the claim. Those interim claims also do not account for continuing or future losses and harms caused to persons and businesses affected over the long term. Currently many of those claims are not being paid at full value. The continuing and future long term losses sustained by most persons and businesses cannot be fully assessed and paid out fairly until time passes. This BP interim claims process by no means should be a final remedy for any person or business. No person or business should sign any piece paper settling or resolving interim or final claims with BP before consulting a lawyer. Also beware that most if not all interim claims money paid out by BP is taxable income. So a sufficient amount should be held back by the recipient to pay future income taxes owed on that interim claims money received.