Really, who should be too surprised by BP’s internal report, released today, that “deflects attention away from BP and back onto its contractors" Transocean and Halliburton, and “tries to undermine the notion that the company acted with gross negligence”? It reflects the best corporate tradition of finger pointing, which began early on, and CYA (“cover your ass”) internal reviews.
(Although be careful, BP, because covering up wrongdoing with CYA reports can sometimes cause a heap of trouble, like after the Three Mile Island nuclear accident. See references to the Keaten Report. Interesting that BP’s site leaders, Donald Vidrine and Robert Kaluza, have never testified publicly or given interviews. )
The New York Times calls this report “a first glimpse at BP’s probable legal strategy in defending itself and it represents the first in a series of such reports in the coming months.” (Remember that the law’s paltry $75 million liability cap is waived if gross negligence is found.) Not that we don’t believe these other companies aren’t also responsible, like Transocean who is constantly trying to wiggle out of responsibility for this incident, including the deaths of the 11 workers, most of whom worked for Transocean. CNN reports, “The other companies involved have yet to give their version of events, and Transocean has pointedly complained that BP hasn’t turned over data that would help Transocean with its own internal investigation.” Can’t wait to hear what they have to say.
Meanwhile, the claims process for people in the Gulf couldn’t be more frustrating. Ken Feinberg is running the program to divvy out $20 billion pledged by BP. It’s hard to find anyone happy with his statements and actions so far. From delays and excuses (in the words of Lafitte shrimper William Lorenzo: "Can we take whoever programmed this system for the Gulf Coast Claims Facility, take them down to the swamp, drop them off for 10 days and let them wait on us to go pick them up to see how it feels to keep waiting") to his refusal to consider mental health claims, to blocking recovery for Florida’s devastated tourism business (“Some small hotels on scenic Marco Island, Fla., say they're on the verge of closing unless they receive checks from the $20 billion pot” but Feinberg is unlikely to find them eligible anyway), it's a mess. And there’s more here , here.
Things are so bad that Florida’s Department of Children and Families Secretary George Sheldon, “who was one of the oil company’s harshest critics before Feinberg took over,” was forced to admit: “I never thought I’d say this but part of me would like BP back. What [Feinberg] articulated to all of us was something totally different than what’s in this protocol.”
Meanwhile, Feinberg says “it was his idea, not BP's, to require that anyone who receives a final settlement from the $20 billion compensation fund give up the right to sue the oil giant” and “he has not yet decided whether the no-sue requirement will extend to other companies that may be responsible.”
"It is not in your interest to tie up you and the courts in years of uncertain protracted litigation when there is an alternative that has been created," Feinberg said.
He added, "I take the position, if I don't find you eligible, no court will find you eligible."
Hmmm. How about we let the courts decide that? Seems like given all the above, litigation will be absolutely necessary.
Merely focusing on how claims are being handled by GCCF is a waste of time and energy. GCCF employs the traditional "delay, deny, defend" strategy used by insurance companies. Ultimately, BP oil spill victims will be compensated by the Oil Spill Liability Trust Fund or via litigation.
Oil Spill Liability Trust Fund
Fortunately, there is no need for GCCF. A victim may present a claim for damages to BP and wait 90 days. If BP does not pay the claim, the victim may present the claim to the Oil Spill Liability Trust Fund (the Fund). The Fund could either pay the victim the amount owed or provide a temporary loan to the victim and then the U.S. Attorney General may commence an action on behalf of the Fund against BP and collect the amount from BP. “Any person, including the Fund, who pays compensation pursuant to OPA to any claimant for damages shall be subrogated to all rights, claims, and causes of action that the claimant has under any other law.” 33 U.S.C. § 2715
Litigation
Each individual claimant/potential plaintiff who has suffered damages as a result of the BP oil spill of April, 2010 should immediately seek competent legal counsel to directly represent his or her interests. Given that the damages suffered by the vast majority of individual potential plaintiffs as a result of the BP oil spill of April, 2010 are potentially so great and will be on-going, class treatment may not be necessary to permit effective litigation of the claim. Here, when the amount of damages suffered by the individual is so great, the filing of an individual lawsuit should be economically feasible and may be in the best interests of the plaintiff. This decision should be made by the potential plaintiff only after a thorough consultation with his or her legal counsel.
Victims of the BP oil spill should know their legal rights.
The following articles may help:
http://donovanlawgroup.wordpress.com/2010/08/23/the-gulf-coast-claims-facility-limits-bps-liability-and-guarantees-the-oil-companys-continued-operation-in-the-gulf-of-mexico/
http://donovanlawgroup.wordpress.com/2010/05/09/bp-oil-spill-of-april-2010-why-class-action-lawsuits-may-not-be-in-the-best-interests-of-potential-plaintiffs/
Posted by: Brian J. Donovan | September 08, 2010 at 01:20 PM