Claims can still be presented against BP, Barbier rules

Steve Korris Sep. 6, 2011, 5:17am


NEW ORLEANS - Private parties suing over losses from the Deepwater Horizon explosion can continue litigating even if they haven't presented claims to BP as the Oil Pollution Act requires, U.S. District Judge Carl Barbier decided on Aug. 26.

He wrote that a master complaint for claims he classifies as B1 sufficiently alleged presentment, "at least with respect to some of the claimants."

He wrote that large numbers of claimants likely bypassed the requirement, others tried to present claims but didn't comply with the Act, and others presented claims that have been denied.

"In the ordinary case, the court would simply dismiss those claims without prejudice," he wrote.

"However, as the court has previously noted, this is no ordinary case," he wrote.

He wrote that it would be impractical, time consuming, and disruptive for parties to sort through more than 100,000 claims and determine which ones to dismiss.

"Moreover, such a diversion at this time would be unproductive and would not advance towards the goal of allowing the parties and the court to be ready for the limitation and liability trial scheduled to commence in February 2012," he wrote.

"No matter how many of the individual B1 claims might be dismissed without prejudice, the trial scheduled for February would still go forward with essentially the same evidence," he wrote.

He wrote that he didn't decide what constitutes presentment.

He wrote that the Act requires a claimant to present a claim for a sum certain to the responsible party.

"How this requirement can be applied in the context of the BP oil spill is unclear," he wrote.

"The long term effects on the environment and fisheries may not be known for many years," he wrote.

He delivered a 39 page order resolving a variety of motions tied into the B1 bundle.

He ruled that claimants can sue defendants other than the responsible party, BP, under the Act or general maritime law.

He wrote that when Congress passed the Act, it didn't intend to occupy the entire field governing liability for oil spills.

He wrote that the Act doesn't address the liability of defendants other than the responsible party.

He wrote that it displaced maritime causes of action against the responsible party.

He wrote that it doesn't indicate that Congress intended to immunize other parties from direct liability.

He ruled that plaintiffs can seek punitive damages under maritime law.

Having handed victories to a plaintiff steering committee, he handed them some defeats.

He dismissed all maritime negligence suits against Anadarko Petroleum and MOEX, minority investors in the rig operation.

He wrote that under a joint operating agreement, BP was solely responsible for drilling operations.

He wrote that any information Anadarko and MOEX may have had didn't give rise to a duty to intercede in the operation.

He denied the committee's request for a declaration that settlements releasing punitive damages without judicial review are contrary to law and public policy.

He denied their request for a declaration that BP and its Gulf Coast Claims Facility aren't obligated to obtain releases or assignments of claims against other parties.

"Plaintiffs do not identify any cause of action entitling them to declaratory relief," he wrote.

He wrote that "nothing prohibits defendants from settling claims for economic loss."

He wrote that speedy recovery was a goal of the Act.

Finally, he denied the committee's plea for attorney's fees under maritime law.

"Pursuant to the 'American Rule' in the United States, the prevailing litigant is ordinarily not entitled to collect attorneys' fees from the losing party," he wrote.

"Generally, litigants must pay their own attorneys' fees absent statute or enforceable contract.

"Plaintiffs allege a claim for attorneys' fees under the so called bad faith exception to the American rule.

"Plaintiffs misread the bad faith exception, which is designed to cover situations in which the defendants have acted in bad faith, vexatiously, wantonly, or for oppressive reasons."

He wrote that the focus of the inquiry is not the actions that precipitated a suit but the manner in which the litigation itself is carried out.

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