The administrator of BP’s compensation fund is trying to persuade Gulf Coast residents not to sue the company, but to take a settlement instead. But many in the region say it’s too early to pinpoint their damages.
Ask Darren Frickey how much this oil spill has already cost him, and the answer is as simple as it is sad. He has gone from catching $5,000 worth of shrimp a week in Louisiana’s bayous to catching none at all.
Peering down at the containers on his boat that have been empty for months, Frickey says the hard part is trying to guess when or if he will ever fill them up again.
“It’s just frustrating. We’re waiting on the biologists, somebody to let us know,” he says. “I’m in between a rock and hardship right now.”
‘A Roll Of Dice’
Even the biologists might be years away from saying when fishing will return to normal. But in order to get a final settlement from BP, Frickey and his wife, Donna, have to figure out now what their total losses are, and then promise not to sue for more.
“I couldn’t put a price on it because I really don’t know how long it’d be,” Donna Frickey says. “If it’d be a year, two years, 20 years.”
“It’s a roll of dice and might not be in your favor,” her husband says.
At home, the Frickeys are collecting old fishing receipts and talking to their lawyer, Soren Gisleson, about suing instead of settling. Like many, they have been able to get small interim payouts from BP without waiving their right to sue.
But now, Gisleson says, it’s unfair to ask anyone to make a final settlement before they understand all of their damages.
“You’re putting them in a position where they have to file a lawsuit, otherwise they lose,” he says.
‘A Generous Check’
In the case of the Sept. 11, 2001, attacks, compensation czar Ken Feinberg was able to persuade most victims to take his settlement by arguing that it was faster and surer, for example, than suing the terrorists or the airlines. But in the Gulf, hundreds have already sued BP, including a class action by Louisiana restaurants. On Thursday, a panel of federal judges in Idaho will consider which court should handle the slew of lawsuits.
Attorney Robert Wiygul says the pressure to settle may ultimately backfire.
“I’m afraid that that approach is going to drive people into court and into litigation instead of keep them out of it,” Wiygul says.
Feinberg was grilled on the issue by Congress last week and insisted that his estimates will be generous. But ultimately, he said, his offers are just that.
“We’ve done our best. We’ve talked to the experts. If you believe that that check is insufficient, don’t accept it,” Feinberg said. “You can go about your business. You can go litigate. You can do whatever else you want.
“But it is a generous check that accurately reflects the likely long-term damage — and then some.”
‘In A Predicament’
Another concern is the possibility of long-term health effects from the oil and the cleanup. In the case of the Sept. 11 attacks, rescue workers who only discovered their illnesses years after the fact had to ask Congress to reopen the compensation fund. Lawmakers last week implored Feinberg to leave the door open to that possibility in the Gulf, and to make sure that even those who settle a business claim don’t give up their right to sue later for a health problem.
Feinberg called the scenario a horror and said he’d ponder it.
“Right now, I would say — it’s a tough call,” he said. “You’ve given me a hypothetical which I hadn’t thought of.”
BP has repeatedly promised that it would cover all legitimate claims — even late ones. But folks like Darren and Donna Frickey say their own cash problems are making it hard to wait. They may have no choice but to accept whatever Feinberg offers.
“We have monthly notes just like everyone in the world, and if they don’t help me now, I might lose my house, my truck,” Darren Frickey says. “We’re in a predicament.”
Opting to settle rather than sue may also mean giving up something else.
Frickey has a lot of time these days to watch BP on television, defending its big executive bonuses and tax breaks. It would be nice, he says, to get them into court and watch them squirm a little in the hot seat.