Louisiana Record

Thursday, August 22, 2019

Appeals court affirms district court's denial to review boat lift operator’s Horizon claim

By Sam Knef | Mar 3, 2017

NEW ORLEANS — The 5th Circuit Court of Appeals has upheld a finding from a federal court in New Orleans, which refused to hear a boat lift operator's claim for damages involving the Deepwater Horizon oil spill. 

In a per curium order issued on Feb. 1, the appeals panel found that Peter Landgrave, who runs Hi and Dry Boat Lifts in southern Louisiana, could not show that the Eastern District of Louisiana should have reviewed his case.

Landgrave had sought compensation from BP's Economic and Property Damages Settlement program, claiming that as a result of the 2010 oil spill there was a reduced demand for boat lift operations.

He was initially denied by the claim's administrator and an appeal panel. Landgrave then turned to the district court for discretionary review, but it declined to second guess the appeal panel.

In his argument before the 5th Circuit, Landgrave claimed that the district court was wrong in not reviewing his claim. He further argued that the claim's administrator erred in turning down his request because he showed satisfactory evidence of lost revenue.

"The usual course for showing that the spill caused a decline in a business’s revenue is to demonstrate that charting it against time reveals a V-shape over the period before and after the disaster: revenue declines during the period when pollution stunted commerce and recreation along the Gulf Coast but then rebounds as the effects of the disaster subside," the 5th Circuit order states.

The 5th Circuit panel included Judges Carolyn King, James Dennis and Gregg Costa.

"The weakness in Landgrave’s case all along has been that his revenue figures exhibit the dip but not the upswing," the order states.

The order states that the settlement program allows an entity with revenue figures like Landgrave's to participate if it can present specific documentation of factors “outside of its control” that kept the business from rebounding.

At the 5th Circuit, Landgrave argued that he included evidence in his claim evidence that satisfied that standard. In Landgrave’s opinion, the order states, it would have followed that the claim’s administrator and appeal panel were wrong, and that the district court should have reviewed his claim. 

"The trouble is that Landgrave did not make this argument to the Appeal Panel," the order states.

It describes "Rule 30" in the settlement agreement, which holds that "issues for review by the Court shall be limited to those issues that were properly raised before the Appeal Panel.”

"When he went to the Appeal Panel, Landgrave sought to make up for his failure to satisfy the V-curve test under another provision of the Settlement Agreement that allowed businesses with less than $75,000 in revenue to piggyback on the proof offered by neighboring businesses (the causation proxy test)," the order states.

That appeal panel rejected the argument made by Landgrave and never heard his contention that he met the separate "factors-outside-of-his control" test, the order states.

"It follows that Landgrave cannot show that the district court should have heard his case when he failed to satisfy Rule 30 by making his argument to the Appeal Panel first."

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BP Fifth Circuit Court of Appeals U.S. District Court for the Eastern District of Louisiana