NEW ORLEANS — An Alabama radiology
practice that was denied
business-loss compensation by the claims program for the Deepwater
Horizon oil spill has been denied again at the U.S. Court of Appeals
for the 5th Circuit.
Alabama Coastal Radiology, comprised of
16 radiologists, had attempted to obtain compensation as a
"Multi-Facility Business" under the business economic-loss
framework of the Court Supervised Settlement Program, according to
BP, which took responsibility for the
2010 oil spill, has distributed millions of dollars in damages to
affected entities under the CSSP.
According to a per curiam order handed
down Jan. 25, ACR provided services to Infirmary Health Services —
which owns several hospitals at which the radiologists would
interpret scans taken by the hospitals in "reading rooms"
owned by the health-service company.
The 5th Circuit panel, comprised of
Judges Grady Jolly, Patrick Higginbotham and Edward Prado, noted that
ACR has no physical office and outsources its administrative tasks.
However, ACR submitted a claim for a
reading room in a hospital in Mobile, Alabama, under the
Multi-Facility Business Framework of the claims program, which
requires that a business entity maintain facilities in more than one
location and at least one in the Gulf Coast area.
"Facility,” according to the
is defined as "a separate and distinct physical location of a
Multi-Facility Business at which it performs or manages its
An expanded definition of "facility"
is that it must be a separate and distinct physical structure or
premises, must be owned, leased or operated by the business entity
and must be at which the business entity performs and/or manages its
The CSSP denied ACR's claim, explaining
that it failed to meet all three elements of the definition of
"ACR only has a contract to
provide radiology services at the facilities … the claimant does
not have an office space at the facilities for which they pay rent or
lease expenses. . . . According to Policy 467, this claimant does not
have the option of filing a separate claim for operations performed
at one of the hospitals. The claim should be closed, as the claimant
has filed a separate claim for a location that is not a facility,"
the CSSP explained
in a denial summary.
After ACR was initially denied by the
CSSP, it requested re-review. The CSSP denied
the claim again after re-review, and also after ACR asked for
reconsideration of the post-re-review denial notice.
It once again sought relief at an
appeal panel, which affirmed the denial. The panel explained that
“Claimant does not pay rent or lease expenses on the reading room
…[and] [t]here is not evidence that claimant pays for janitorial
services, electricity or other items a tenant normally has,” the
ACR then appealed to U.S. District
Judge Carl Barbier of the Eastern District of Louisiana, who has
overseen the Deepwater Horizon litigation. Barbier denied
discretionary review of the decision by the appeal panel.
In its Jan. 25 order, the 5th Circuit
“[B]ecause the district court’s denial of discretionary review
does not result in a contradiction or misapplication of the
settlement agreement, we hold that it is not an abuse of discretion