There is, and will continue to be for some time, a tsunami of information slamming into Panama City Beach concerning the subject of oil spill claims. Lawyers from all over have descended upon the Gulf Coast to sign up clients to seek damages against the major companies involved in the oil spill (BP, Haliburton, Transocean, Cameron International, and perhaps others). There are already virtually uncountable news articles, blogs, public agency announcements, and advertisements on the subject. This article is the first in a series of articles to be published here and by pcbenews over the next several days, weeks, and months, which are intended to summarize, simplify, and help the residents and businesses of Panama City Beach understand the issues and the actions you may need to take.

In this first article, let’s get the fundamentals out of the way so that we may address the remaining issues in more detail in subsequent articles. The fundamentals are these:

1. Do not sign anything, including endorsement of checks, concerning your potential oil spill claims without first seeking competent legal advice.
2. Avoid making public statements, or signing documents, that could be used to limit your damages in any future claim.
3. Keep detailed and accurate records.
4. Shop smartly for legal advice and representation.

Let’s address the fundamentals in a bit more detail, one at a time.

Do Not Sign Away Your Rights

There was a CNN news story last night (Monday, May 10) reporting that the surviving workers on the exploding oil rig were pressured into signing statements even before they were brought in from the Gulf. This is a vivid (and troubling) example of how intent these big companies are upon obtaining statements and releases. The typical ploy is to offer small amounts at first in hopes of getting complete releases before victims are fully aware of the extent of their damages. Another example is the contracts offered to fisherman in Louisianna hired to help clean up the oil spill. These contracts contained a release of future damages. (Fortunately, in this case, they were taken to court and the court voided the releases.)

Everyone should be aware that you will not receive anything from any of these big companies without their seeking a complete release. The damages are not even known yet. The damages could be catastrophic before this is all over. Everyone should be extremely cautious concerning release of their claim to damages at this time, or anytime in the near future, for any amount that the companies will be willing to offer voluntarily. Note again, that even the endorsement of a check can constitute a release depending upon the wording. Thus, the best bet for now is to not accept any payment from the big companies involved at all, unless the transaction has been thoroughly reviewed and approved by a competent attorney representing your interests.

Avoid Making or Signing Statements That Could Limit Your Damages

Any statements that can be intrepreted (or twisted) to indicate that you have not been affected, or that the effect on you or your business has been limited, should be avoided. Any statements you may make might be used against you in court later in an attempt to limit your damages. Certainly do not sign anything that could be used in this manner.

But, the concern extends beyond just papers that you sign. Anything you say that is recorded or published in any way may be available to come back and haunt you. It is interesting to note that Facebook and Twitter are now carefully researched before trial in various types of lawsuits. Statements you make on Facebook, Twitter, other social networks, in blogs or email, or even in comments to blogs or on Facebook, can be preserved and might be brought up later to be used against you.

This issue becomes particularly troublesome when it comes to marketing your business. If you are a hotel on the beach, for example, right now you want to tell the world that everyting is just fine – there are no problems at all. There could be ramifications if you continue those statements and advertisements beyond the point where damages actually begin to occur, however. (You should even be aware of the potential of liability to your customers if you make representations that prove not to be accurate, your customers rely on those representations, and your customers have loss as a result of that reliance.) We, of course, understand that your current income is more important to you now than some uncertain prospect of a damage award down the road. We simply suggest that you be mindful of what you say and how you say it, in light of how it may be used against you later.

Keep Detailed and Accurate Records

There are numerous ways you can be negativley impacted by the oil spill; ranging from loss of property, damage to property, reduction of property value, loss of business, cancellations, loss of use of natural resources, reduction of available supplies . . . all the way to physical harm from exposure to toxins in the water, in the air, or in food supplies . . . among many other possible negative impacts. Detailed proof of these damages, especially in light of the many other competing claims that will be out there, will require detailed and accurate records.

If you are a motel, condo, charter boat, or other business that books customers in advance, record all cancellations immediately when they are made. All businesses have hopefully kept accurate past records of business volume that can be compared to your volume of business now and as evidence of the oil spill begins to show up in Panama City Beach. Any extra advertising expense, due to reduction of business as a result of fear of the oil spill, should be recorded as such. Any additional help to answer the many phone calls questioning about the oil spill should be well documented. Keep records of the reasons given by your customers for cancellations as well as the questions they asked during the contact.

While the possible ways that you could be damaged by the oil spill are too numerous to address here specifically, in general the point is to be mindful each time you have reduced revenue or incur an expense, especially an unusual expense, as to how it may relate to the oil spill . . . and keep contemporaneous accurate records.

Shop Smartly for Legal Advice and Representation

There are many national law firms here competing for your claims already . . . and there will be more as damages from the spill move into this area. The terms of their contracts can vary, some taking a larger percentage of your recovery as fees than others, some being better situated to represent you than others. The best approach is to start with an experienced and competent local lawyer who can then help you chose from among the larger firms. While individual claimaints will have no bargaining power with the big law firms over the percentage of fees, experienced local lawyers can often negotiate those fees for their clients. Experienced and competent local lawyers are better able to evaluate the bigger firms and their ability to meet individual claimant’s needs. While local lawyers may lack the expertise and the resources for years of battle with these big companies, they can give you personalized advice and assistance in choosing a specialized law firm and joining the larger claim pools, as well as help you with your first party insurance claims (often not of interest to the bigger firms). Local lawyers can meet with you face to face, paying more attentention to your particular facts and circumstances. Engaging a local lawyer first should not increase your ultimate fees. First party insurance claims allow for recovery of fees if the local lawyer has to take them to court. As for the other claims, the larger firms will usually ‘share’ a portion of their fee to cover the referring local lawyer, without increasing fees to the client. Many local lawyers, including George J. Little, will provide free initial consultations concerning oil spill damages to discuss all of these matters.

Claims vs Court - Tough Decision

This article is the second in a series of articles on oil spill claims for the Panama City Beach area written by George J. Little, Attorney to assist you in understanding this complex subject. The first article, above, Understanding Oil Spill Claims - The Fundamentals was first published on 5/11/10. This following was written on May 17, 2010.

Although this article has been prepared by an attorney, this article is not legal advice and is not intended as legal advice. This article is intended to provide only general, non-specific legal information. Competent legal advice depends upon the particular facts and circumstances of your situation. Legal strategies and outcomes are always dependent upon particular facts and circumstances, which vary from person to person or business to business. Thus, only a competent lawyer advised of your particular facts and circumstances can adequately advise you. No attorney/client relationship with any reader is intended or created by this article.

The tough initial decision facing most victims of the oil spill in the Panama City Beach area is how to proceed with their claims. There are strongly differing opinions being offered on this issue. This issue becomes especially timely for Bay County residents and businesses as BP has announced the opening of a claims office here next week. It may not be in your best interest to run down and make a claim until you fully understand all the ramifications.

You may be considering these choices: 1) You can file a claim directly with BP through its claims office; 2) in certain circumstances, you can file a claim with the Federal Oil Spill Liability Trust Fund (OSLTF); or 3) You can file a case in court. This article will try to explain the differences and ramifications of these choices.

Oil spill claims are covered by both Florida law and Federal law and can be affected by local legislation as well. The differences in the local, Florida and Federal laws explains in part why there is so much confusion regarding oil spill claims.

In broad general terms, under Florida common law and statutory law, someone is liable for damages when they are negligent. ‘Negligence' is the failure to use reasonable care under the circumstances. There is an abundance of evidence already suggesting that BP and the other companies were quite negligent in both allowing this spill to occur and in the way they have handled it since. Thus, one avenue available to those who have suffered injury or losses in Florida due to the BP oil spill is to sue in court under state law for damages. In theory, such a suit would be similar to suing someone who negligently caused an explosion next door that burned down your house. Your damages would not be artificially limited. In reality, for the BP oil spill, there will be so many of these cases, however, they will eventually become consolidated into large class actions or at least come under some sort of case management scenario that will make them unlike ordinary cases. Nevertheless, there are many advantages to be considered from proceeding in this fashion with your claim.

The Federal law applicable here is the Oil Pollution Act (OPA), 33 U.S.C. 2702 et seq., which was passed in 1990 in response to the Exxon Valdez incident. The OPA, among other things, created the Oil Spill Liability Trust Fund (OSLTF). The OPA, in addition to creating claims for governments and trustees involved in the cleanup, allows individuals and businesses to make claims against the OSLTF for property damage and lost profits due to the oil spill. The ‘limitation of damages' you may have heard about, however, comes from the OPA, which presently limits total cleanup costs for a single incident to $1 billion, and limits total claims for indirect costs such as lost wages and tourism to $75 million. The OPA also does not cover claims for personal injury.

You cannot file a claim with the OSLTF if you have already received compensation from the ‘responsible party' (i.e. BP).

The $75 million dollar cap is entirely inadequate for a spill of this magnitude. There are efforts by some in Congress to increase the cap, but they have not yet been successful. There are probably 75 businesses in Panama City Beach alone who will experience over a million dollars of loss each before this catastrophe is over. The decision to use dispersants, and their anticipated effect on marine life, will affect the Gulf seafood industry for many, many years to come. Thus, the damage to the Florida seafood industry alone will be substantial and will last for several years. $75 million can not possible cover all the damages to the entire Gulf Coast from this spill. This limitation may be a good reason, depending upon your particular facts and circumstances, to consider filing your case in court under state law rather than making a claim against the OSLTF. On the other hand, if you do file a case in court, it may preclude payment to you from the OSLTF.

While it may seem quicker and more simple just to go to BP and take a quick settlement, consider the following before making that decision. There are several reports that fishermen in Lousianna are becoming quite frustrated. While BP is paying ‘good money' for clean up work, only a small portion of the fisherman who signed up are actually being put to work. Others, who filed claims with BP are becoming frustrated over the time it is now taking to process those claims. (Louisiana fishermen bitter over BP job handouts, BP admits misstep over oil spill claims waivers, Louisiana fishermen losing patience over spill.) Also, consider the reports that BP is trying to keep people from consulting with and hiring lawyers. Alabama lawyers representing fisherman who attended the meeting reported that during a May 12 Vessels of Opportunity meeting at the Friendship Baptist Church in Bon Secour, Alabama, BP officials warned fishermen that they would not address claims presented by individuals and businesses that retained an attorney. Reports throughout the Gulf coast, including the Florida panhandle, Louisiana, Mississippi and Alabama, suggest BP is employing the same measures in an effort to intimidate fishermen from obtaining legal representation.

Why does BP not want people to have lawyers? You can bet they have hundreds of lawyers working for them. This is the company that required its own employees, traumatized by the explosion on the oil rig, to sign statements before they were even brought in from the Gulf! Despite its representatives' statements to Florida officials that BP is not seeking waivers, there is no good reason to discourage people from being fully advised before they sign something, unless there are problems with what they are being asked to sign.

The next most simple thing, it may seem, is to be to make a claim against the OSLTF. However, one of the requirements of making that claim is that you have already submitted your claim to the ‘responsible party'. That is, you can't make an OSLTF claim unless you have filed a claim with BP first.

Thus, the remaining avenue, while it may seem more complicated and you may be concerned that it will take longer, would be to engage an attorney and pursue your claim according to your attorney's advice. Your attorney will be able to explore and review all of the facts and circumstances of your particular case and help you decide the best course for you to take.

The advantage to BP in offering quick (seemingly large, but relatively small) claims payments is that victims of the oil spill have often lost their livelihood and need help now. Individuals and businesses suffering loss from the oil spill and its consequences should explore other avenues for that immediate help, however. The Small Business Administration has approved disaster loan funding for 35 Florida counties due to the oil spill in the Gulf of Mexico. (SBA to Approve Oil Spill Loans in 35 Fla. Counties.) Other Federal, state, and local loans and aid will likely also become available as the effects of the spill become more pronounced.

It's a tough decision, but one in which patience, thoughtfulness, and advice may pay off.

For further discussion of engaging a local attorney to assist you in understanding your claim, see our previous article Understanding Oil Spill Claims - The Fundamentals

Check back often for further installments in this series.

Degree in Psychology from Florida State University, cum laude, (1975). Juris Doctorate Degree with honors from Florida State University School of Law (1980). Thirty (30) years of experience in general civil trial practice, State and Federal Courts, in the Florida Panhandle.

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