The almost 4-year long court battle surrounding the BP Oil Spill seems to have taken a turn for the worst for BP. Last week, the U.S. District Court for the Eastern District of Louisiana determined the London-based company’s gross negligence and willful misconduct led to millions of gallons of oil being spilled into the Gulf of Mexico in 2010. This means BP could face “enhanced civil penalties” under the Clean Water Act – which nearly quadruples if a discharge of oil results from gross negligence or willful misconduct.


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When Kenneth Feinberg set up the protocol for distributing the funds to oil spill victims, he wrongly included geographic proximity as a consideration. This consideration directly conflicted with the Oil Protection Act, and many claims submitted by Florida businesses impacted by the oil spill were wrongfully denied. Thanks to Alex Sink, Charlie Crist, and Bill McCollum, geographic proximity is no longer a determining factor.


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The best way to ignore or cover up improper and incompetent claims practice activity would be to ask only the guilty party, right? That is exactly what Louisiana Insurance Commissioner James Donelon and Risk & Insurance appear to have done. It seems that Donelon is not only in bed with the insurance industry, but also with the BP oil spill claims adjusters. Everybody in the business knows that most BP oil spill adjusters need a great deal of accounting help, which they are not getting.


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The Destin beach’s white sugar sand was in full glory yesterday. While flying back to Tampa and looking down on the crystal blue water and the most gorgeous stretch of beach in the United States, I told Corey Harris that such beauty and fun is being wasted because of fear caused by the oil spill. A funny YouTube video about the current threat of oil and dragons makes the point:
 

https://youtube.com/watch?v=11hGx8eMi_M%26hl%3Den_US%26fs%3D1%26rel%3D0%26color1%3D0x2b405b%26color2%3D0x6b8ab6
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There has been a disgraceful amount of pandering by potentially incompetent lawyers to sign up BP Spill Victims. Many of these lawyers are experienced only in personal injury cases, and many are not licensed in the affected states and are using the internet to lure clients. One attorney from California, who is not licensed in Florida, gave a seminar this week in Destin, Florida, about his services. Many of these attorneys have no intention of providing sound disaster recovery advice that accountants and other experienced attorneys can provide. The "elephant in the room" is that they do not have the experience or resources to give competent legal advice but are banking on contingent percentage contracts that obligate clients to sums far in excess of what is reasonable. These attorneys do not have the competence or experience to discuss business interruption concepts because they have never practiced in this area of the law. Many attorneys are advertising and signing up clients without then doing anything that is reasonably required under the circumstances.


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During the Congressional hearings, Senator Jeff Bingaman, Chairman of the Energy and Natural Resources Committee, said:

If this is like other catastrophic failures of technological systems in modern history, whether it was the sinking of the Titanic, Three Mile Island, or the loss of the Challenger, we will likely discover that there was a cascade of failures and technical and human and regulatory errors.


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This morning’s edition of Business Insurance has an article, Claims Could Get Messy After Huge, Costly Oil Spill, which explains that insurance claims are going to be complex and that the cost will certainly be in the billions. My reading of a FC&S discussion on the issue of "pollution" exclusions in homeowners policies indicates the same thing. Indeed, given the definition of a "pollutant" in the standard form policies, one may question whether oil escaping in a natural form would be a "pollutant."


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First party property coverage may exist under some common form property insurance policies for losses caused by the oil spill. While I have been rather pessimistic regarding the possibility of first party insurance companies sending legions of claims adjusters to help oil catastrophe policyholders, there appears to be some coverage available, and possibly, a lot more, depending on what the cause of the loss is eventually determined to be. These facts are important. Each coverage form is important as well and must be reviewed in detail.


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It appears that BP and others involved in the current oil spill may be taking their cues from insurance carriers. Insurers have always hedged their bets by saying that they would pay “legitimate claims” after disasters such as Hurricane Katrina and the Northridge Earthquake. This is a brilliant public relations strategy. It allows top executives to go on television and tell the world that the company cares and will do whatever it can to make people whole again. It leaves the general public with a warm and fuzzy feeling of security, even when the insurer has absolutely no intention of promptly and fully paying the full amount of damages owed.

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