Yerkes et al v BP Exploration & Production, Inc. et al

Filing 1

COMPLAINT against All Defendants. Filing fee $ 350.00 receipt number 113C-4499854, filed by Joseph Yerkes, Margaret Norwood, Austin Norwood, Joshua Allen Bengson. (Attachments: # 1 Civil Cover Sheet)(McKee, Robert)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.

JOSEPH YERKES, JOSHUA ALLEN BENGSON,
AUSTIN NORWOOD and MARGARET NORWOOD,
as husband and wife,
Plaintiffs,
vs
BP EXPLORATION & PRODUCTION, INC., a
Delaware Corporation, BP AMERICA PRODUCTION
COMPANY, a Delaware Corporation, BP, P.L.C., a
Foreign Corporation, and AIRBORNE SUPPORT
INTERNATIONAL, INC., a Louisiana Corporation,
Defendants.
_______________________________________________/

COMPLAINT FOR DAMAGES
COMES NOW the Plaintiffs, JOSEPH YERKES, JOSHUA ALLEN BENGSON,
AUSTIN NORWOOD and MARGARET NORWOOD, as husband and wife, by and
through undersigned counsel, and sue the Defendants, BP EXPLORATION &
PRODUCTION, INC., a Delaware corporation, BP AMERICA PRODUCTION
COMPANY, a Delaware corporation, BP, PLC., a Foreign corporation, and AIRBORNE
SUPPORT INTERNATIONAL, INC., a Louisiana corporation, and as grounds would
therefore state as follows:
PARTIES
1.

Plaintiff, JOSEPH YERKES, who is a resident citizen of Opelika,

Alabama and is over the age of 19.

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2.

Plaintiff, JOSHUA ALLEN BENGSON, who is a resident of

Destin, Florida and is over the age of 19.
3.

Plaintiff, AUSTIN NORWOOD, who is a resident of Santa Rosa

Beach, Florida and is over the age of 19.
4.

At all times material hereto, the Plaintiffs, AUSTIN NORWOOD and

MARGARET NORWOOD, his wife, were and are residents of Santa Rosa Beach, Florida.

5.

All parties in this complaint share common issues of law and fact.

At material times, each resided in Florida. Each was damaged and injured by exposure to
and effects from the subject oil spill and chemical remediation negligence of Defendants.
6.

Each joined Plaintiff has a claim based in Maritime Law since

either their real or personal property was directly contacted and damaged by the subject
polluting chemicals, and/or are fisherman/fishing vessel owners who earn their
livelihoods from commercial fishing activities, and/or each was physically exposed to the
hydrocarbons and/or dispersant chemicals and injured by the exposure.
7.

Defendant, BP EXPLORATION & PRODUCTION INC., is a

Delaware corporation, at all pertinent times registered to do and doing business in the
State of Florida, and/or its territorial waters, whose principal business establishment and
registered business office is in Houston, Texas is 501 Westlake Park Blvd., Houston,
Texas 77079 and whose agent for service of process is C.T. Corporation, 1200 South
Pine Island Road, Plantation, Florida 33324. BP EXPLORATION & PRODUCTION
INC. was a leaseholder and designated operator of the Macondo well from which the oil
spill originated upon which this complaint is based and was designated as a responsible
party by the U.S. Coast Guard under the Oil Pollution Act of 1990, 33 U.S.C. § 2714.

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8.

Defendant, BP AMERICA PRODUCTION COMPANY, is a

Delaware corporation, at all pertinent times registered to do and doing business in the
State of Florida, and/or its territorial waters, whose principal business establishment and
registered business office in Houston, Texas is 501 Westlake Park Blvd., Houston, Texas
77079 and whose agent for service of process is C.T. Corporation, 1200 South Pine
Island Road, Plantation, Florida. BP AMERICA PRODUCTION COMPANY was party
to the contract for the drilling of the Macondo well by the Deepwater Horizon vessel.
9.

Defendant, BP, P.L.C., is a foreign corporation, at all pertinent

times doing business in the State of Florida through control of its wholly-owned
subsidiaries BP Exploration & Production, Inc. and BP America Production Company
(collectively “BP”).
10.

Defendant, AIRBORNE SUPPORT INTERNATIONAL, INC., is

a Louisiana corporation, whose domicile address in Louisiana is 3626 Thunderbird Rd.,
Houma, LA 70363 and whose registered agent is Howard Barker, 3626 Thunderbird Rd.,

Houma, LA 70363 (hereinafter “ASI International”). ASI International participated in the
post-explosion Oil Spill remediation and response efforts including involvement in the

spraying or release of chemicals in Florida’s Territorial Waters.
JURISDICTION AND VENUE
11.

Plaintiffs incorporate by reference, verbatim, the allegations in

Paragraphs 1 through 10, above.
12.

This Court has jurisdiction over this action pursuant to 28 U.S.C.

Section 1332(a)(4), because this matter in controversy exceeds the minimum

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jurisdictional amount of $75,000.00, exclusive of interest and costs, and this case is
between Plaintiff and citizens of a State or of different States.
13.

Jurisdiction is also proper under 28 U.S.C. Section 1331, because

the claims asserted by Plaintiffs arise under the laws of the United States of America,
including the laws of various states which have been declared, pursuant to 43 U.S.C.,
Section 1331(f)(1) and 1333(a)(2), to be the law of the United States for that portion of
the outer continental shelf from which the oil spill originated.

Federal question

jurisdiction under 28 U.S.C. §1331 also exists by virtue of Plaintiff’s claims brought
herein which arise under the Oil Pollution Act of 1990.
14.

In addition, this Court has jurisdiction over this action pursuant to the Oil

Pollution Act, 33 U.S.C. §2717(b) (the “OPA”).
15.

Pleading in the alternative, jurisdiction also exists over this action

pursuant to The Admiralty Extension Act, 46 U.S.C., §30101, which extends the
admiralty and maritime jurisdiction of the United States to cases of injury or damage, to
person or property, caused by a vessel on navigable waters, even though the injury or
damage is done or consummated on land.
FACTUAL ALLEGATIONS
16.

These cases arise from the April 20, 2010, loss of control of the Macondo

well that was being drilled by the Deepwater Horizon drilling vessel and the related
explosions on that vessel which caused it to sink and resulted in the discharge of
significant amounts of oil that spread throughout the Gulf of Mexico over a period of
more than three months. They also arise due to subsequent additional negligent acts and
failure of reasonable care which occurred in Florida territorial waters.

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17.

At all times relevant to this action, the Deepwater Horizon, an ultra-deep

water semi-submersible drilling rig, was leased to BP. At the time of its explosion on
April 20, 2010, the Deepwater Horizon was being operated by BP for the purposes of
drilling an exploratory well at the Macondo prospect on Mississippi Canyon Block 252
on the Outer Continental Shelf, south, west and north of Florida shores and waters.
18.

The Macondo prospect was being explored pursuant to a ten-year lease,

OCS-G32306, granted by the Minerals Management Services on June 1, 2008, and
owned at the time of the explosion by BP.

The lease allowed BP to drill for

hydrocarbons and perform oil production-related operations in the Mississippi Canyon
Block 252 area which includes the Macondo prospect. BP was designated the lease
operator.
The Blowout
19.

At approximately 10 p.m. on April 20, 2010, following cementing

operations aboard the vessel Deepwater Horizon, workers were finishing drilling
operations for the Macondo well and displacing the drilling mud in the marine riser at the
direction of BP in preparation for completion pursuant to BP’s design, when they
encountered an uncontrolled influx of highly pressurized hydrocarbons into the wellbore
leading to a “blowout” or loss of control of the well.
20.

The combustible gas flowing uncontrolled into the wellbore traveled

quickly up to the rig floor where it was ignited leading to a fiery explosion on the
Deepwater Horizon.

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21.

Defendant, BP was unable to regain control of the well and the fiery

explosions onboard the Deepwater Horizon caused the vessel to be destroyed and sink to
the bottom of the Gulf of Mexico.
22.

BP did not follow safe procedures, in order to save money, by electing to

utilize a risky well design that provided for fewer barriers against hydrocarbon influx into
the wellbore relative to well designs typically used in an unknown and troublesome
formation like the Macondo prospect.
23.

Due to the depth of the Macondo well, BP was also negligent in the

selection of a casing material that was vulnerable to collapse under high pressure. BP’s
negligence in well design and casing selection allowed for an increase risk of a blowout.
BP knew or should have known of those risks but chose risk over increased costs.
24.

In addition to the casing-related problems, the float collar installed on the

final section of casing likely failed to seal properly, which may have allowed
hydrocarbons to leak into the casing, contributing to the April 20, 2010 blowout.
25.

A float collar is a component installed near the bottom of the casing string on

which cement plugs land during the cementing job.
26.

Upon information and belief BP was negligent in operations to install the

float collar and/or in neglecting warning signs of a potentially improper installation of the
float collar.
27.

BP was negligent in preparing the wellbore for cementing operations

which led to an increased likelihood that the cement job would fail and a blowout would
occur.

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28.

BP was negligent in electing to utilize an unsafe cement job design that

was unlikely to create a secure barrier against hydrocarbon influxes into the Macondo
wellbore.
29.

BP was negligent in the selection of an improper cement mixture that was

susceptible to failure under the high pressures and temperatures typical in the Macondo
well.
30.

Negligent cementing operations failed to isolate the well bore from

hydrocarbon zones and seal the bottom of the well against an influx of gas. BP was
negligent in failing to identify this bad cement job ignoring numerous warning signs in
the process.
31.

Upon information and belief, the defective cement job allowed a pathway

for highly pressured gas to enter the Macondo wellbore and travel rapidly from there to
the rig floor.
32.

BP was negligent in the monitoring and design of the drilling mud

program which failed to prevent hydrocarbons from flowing into the wellbore and up to
the Deepwater Horizon.
33.

BP was negligent in the decision and design to displace the drilling mud

from the marine riser before allowing time for the cement to fully set.
34.

BP was also negligent in conducting and monitoring the displacement

operations, failing to recognize the many signs of trouble.
35.

BP was negligent in failing to utilize a casing hanger lockdown sleeve that

would have stopped the hydrocarbons from escaping past the wellhead and reaching the
rig floor.

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36.

BP was negligent in failing to timely identify that hydrocarbons were

entering the wellbore during displacement operations and in failing to initiate well control
measures.
37.

After hydrocarbons reached the rig floor, the Blowout Preventers (BOP’s)

for the Deepwater Horizon, failed to activate as designed to prevent the continued
uncontrolled flow of gas from the formation.
38.

The BOP utilized by BP was defective and unreasonably dangerous in

their manufacture, design, and/or composition, and/or failed to contain adequate warnings
and instructions.
39.

BP failed to ensure that the BOP design used on Deepwater Horizon was

sufficient for the drilling conditions and program expected at the Macondo site.
40.

BP was negligent in failing to properly maintain the BOP’s for the

Deepwater Horizon in accordance with safe practices and federal regulations.
41.

BP failed to ensure that the BOP’s possessed the necessary technology to

properly function including adequate safeguards and redundant systems to prevent
blowouts.
42.

BP failed to ensure that the BOP’s and all related systems were properly

tested to operational conditions and confirmed to be in good working order.
43.

BP was negligent in failing to properly utilize and maintain emergency

systems and equipment on board the Deepwater Horizon or to supervise and/or inspect to
assure same.

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44.

Defendants’ negligent actions and/or omissions caused the blowout of the

Macondo well leading to the destruction and sinking of the Deepwater Horizon and
subsequent uncontrolled discharge of oil into the Gulf of Mexico.
Uncontrolled Discharge of Oil into the Gulf and Environmental Implications
45.

After the sinking of the Deepwater Horizon, the well began to release,

leak, and/or discharge oil directly into the Gulf of Mexico due to the failure of the well’s
cement and/or casing and the concurrent failure of the blow-out preventors.
46.

Defendant, BP, recklessly, willfully and/or wantonly failed to ensure that

oil would be quickly and fully contained within the immediate vicinity of the Macondo
well in the event of a blowout.
47.

The well discharged an estimated 50,000 to 100,000 barrels of oil into the

Gulf of Mexico on a daily basis for at least 87 days.
48.

The United States government has estimated that approximately 5,000,000

barrels (210,000,000 gallons) of oil gushed into the Gulf of Mexico during the months
that the well was uncontained with others estimating that the well discharged upwards of
7,000,000 barrels.
49.

Defendant, BP, willfully and/or wantonly failed to ensure that adequate

safeguards, protocols, procedures and resources would be readily available to prevent
and/or mitigate the effects of an uncontrolled discharge from the Macondo well into the
Gulf of Mexico and to prevent injuring Plaintiffs.

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50.

This massive release of oil contaminated thousands of square miles of

waters in the Gulf as the well flowed uncontained for three months resulting in the ban of
recreational and commercial fishing by the government in many areas during that time
period.
51.

The oil discharged into the Gulf of Mexico from the Macondo well

contained hydrocarbon molecules, carcinogens and other toxic pollutants including heavy
metals which are extremely hazardous to the marine ecosystem in the Gulf of Mexico
including that found in the territorial waters and shores of Florida.
52.

In addition to the oil that was released by BP’s Macondo well, BP directed

over two million gallons of chemical dispersants to be sprayed, injected or otherwise
released into Gulf waters including Florida territorial waters. BP had injected at least
770,000 gallons of chemical dispersants directly into the damaged wellhead and
otherwise directed its contractors, including Airborne Support (ASI) to apply
considerable amounts of chemical dispersants directly onto the territorial waters of
Florida.

These negligent, reckless and wanton activities constitute tortious conduct

which occurred in the territory of Florida, and created new chemical moieties and
physical states of the hazardous mixed chemicals.
53.

Upon information and belief, ASI and ASI International, directed by BP,

knowingly and willfully released toxic and harmful chemical dispersants and/or other
toxic chemicals into the Territorial Waters of Florida, which alone and in combination
with the Macondo chemicals began damaging the natural environment and threatening
both marine and human life and thereby causing economic loss to the business and
industry and to Plaintiffs who are economically dependent on those waters.

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54.

The chemical dispersants released into the Gulf and Florida territorial

waters and shores at the direction of BP contain hazardous and toxic substances and have
been reported to be harmful to both human health and the marine environment.

The

chemical dispersants are designed to interact with spilled oil which then sinks below the
surface, where these solubilized amalgans are more available for exposure to all marine
enviornments.
55.

The use of chemical dispersants introduces toxic pollutants to a larger

portion of the marine environment than when using mechanical oil collection methods,
since the dispersant causes oil to become suspended in the water column available to be
moved by subsurface currents and tides, and deposited in the seafloor sediment…all
places where it is more likely to be encountered and more readily available to be
contacted and absorbed by marine life.
56.

On or about May 19, 2010, the U.S. Environmental Protection Agency

(EPA) Administrator directed BP within 24 hours of issuance to identify and to change to
chemical dispersants that are less toxic than those dispersants that BP had been using. BP
refused to comply and continued using dispersants of its choice.
57.

Defendant BP recklessly, willfully and/or wantonly failed to use ordinary

care by electing to use chemical dispersants that are more toxic than others in the
response efforts and thereby amplified the toxic effects on the marine environment and
the damages to Plaintiffs.
58.

Defendants knew or should have known that the chemical dispersants used

would increase toxicity and marine environment exposure of the oil and increase
damages to Plaintiffs.

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59.

The untested manner and unprecedented scale in which Defendants used

dispersants on such a sheer volume of oil likely caused foreseeable negative
consequences. BP used the dispersants in a manner and quantity for which they were not
designed, labeled or tested by injecting chemical dispersants directly at the wellhead
approximately 5,000 feet below the surface.
60.

Defendants knew or should have known that injecting dispersants at the

wellhead had not previously been tested or used in this manner and had not been tested
under similar conditions. Defendants failed to warn the public or ensure the safe use of
these products.
61.

Defendants also failed to ensure the dispersants’ design was appropriate

for the extreme conditions expected to be encountered during use by BP at the wellhead.
62.

BP’s decision to use chemical dispersants in such extreme conditions for

which they were not designed likely resulted in the foreseeable negative consequence of
preventing the oil from fully rising to the surface resulting in the formation of massive
solubilized subsurface toxic plumes of amalgamated dispersed oil droplets and chemical
dispersants at varying depths that are extremely slow to degrade due to the lack of oil
consuming microbes in the deep marine environment. It also likely caused more toxic
chemicals to penetrate into the shores, beaches and marshes of Florida in their dispersant
solubilized state.

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63.

Upon information and belief, BP knew or should have known, as basic

science suggests, that the direct injection of large amounts of chemical dispersants into
the damaged wellhead at a depth of 5,000 feet would likely cause the formation of
massive, deep water, subsurface oil plumes that would be extremely slow to degrade, and
subject to subsurface current movements to cause much greater exposure to the entire
environment but BP continued with the application of dispersants in this manner to
prevent the oil from reaching the surface in order to conceal the amount of oil being
discharged from the Macondo well and obscure the true extent of the contamination
being caused to the Gulf and marine environment.
64.

The number and magnitude of such plumes have been investigated and the

severe environmental implications continue to be studied. Large oil-dispersant plumes
were confirmed at depths of 3,280 to 4,265 feet many miles from the wellhead of the
Deepwater Horizon. Studies have shown that these dispersant-hydrocarbon plumes are
not degrading as expected and continue their slow ascent to the surface more than a year
after BP’s Macondo well was capped.
65.

Since these deep oil-dispersant plumes and other related hydrocarbon

accumulations on the seafloor are not degrading and will continue to periodically surface
from depth in a difficult to predict manner, it is probable that recurring significant
damage to the shallower marine environment and continued oiling of the marshes and
estuaries will persist for many years to come.

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66.

Such results have resulted in marine life kills and will likely have long

term impacts on the commercial and recreational fishing industries. The full extent of
these impacts has not yet been determined and may take years to assess, but preliminary
evaluation suggests they will be severe.
67.

The amount of oil spilled, combined with the amount of dispersants

applied in the Gulf of Mexico, immediately had significant acute effects on the entire
marine ecosystems of the Gulf on which Plaintiffs are economically dependent, and
chronic negative effects are likely to be felt long after the oil and dispersants have
degraded.

Likely impacts include direct mortality from the chemicals, and indirect

impacts that include reduction in reproduction, genetic disorders, increased susceptibility
to disease, and likely enhanced pathogenicity of marine disease organisms.
68.

Rowan Gould, Acting Director of the U.S. Fish & Wildlife Service, has

stated that the Deepwater Horizon spill “is significant and in all likelihood will affect fish
and wildlife across the Gulf, if not all of North America, for years if not decades . . . .”
69.

The oil and dispersants that were discharged and released are extremely

hazardous to marine life in the Gulf of Mexico. They are especially hazardous to marine
life at the bottom of the food chain, including creatures such as plankton, shrimp, and
crabs which are food for the finfish sought by fishermen.
70.

These plankton, shrimp, and other marine creatures are vital to the entire

marine ecosystem, and the damage already sustained by these tiny marine creatures
threatens the entire marine species throughout the Gulf. The chemicals released into the
Gulf have both direct and indirect impact to tourism and on the businesses of the
Plaintiffs.

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71.

Due to impacts from the oil spill, Plaintiffs have seen greatly reduced

business and have suffered loss of income, loss of business value, and loss of value to
their real property.
72.

In an effort to stay viable and economically survive this disaster Plaintiffs

have been forced to take financial steps to limit the effects of the disaster.
73.

Due to the toxic effect of the oil spill and dispersants on the fisheries of

the Gulf of Mexico, now and in the future, the tourism and sales upon which Plaintiffs’
businesses are dependent have been diminished, endangering the ability of Plaintiffs to
operate or maintain their businesses.
74.

Despite increased business efforts combined with longstanding reputations

for business savvy and competency, the stigma and effect of the spill has drawn fewer
customers to the Gulf business locations of Plaintiffs. More than a year after the well
was capped Gulf Coast communities and waters proximate to Plaintiffs’ businesses and
properties continue to be awash in fresh oil with ongoing harmful effects with no end in
sight. Recovery efforts to repair the physical and stigma damages to Gulf waters have
been inadequate and incomplete, causing economic loss to these Plaintiffs who are
financially dependent on healthy marine environments.
75.

Due to the oil spill disaster, Plaintiffs’ customers have taken their business

to other non-gulf regions and consequently are unlikely to return to the Gulf Coast.
Formerly regular customers simply do not want to visit and spend their money in the
Plaintiffs’ Gulf neighborhoods where the natural marine bounty has been and continues
to be damaged.

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76.

Due to the unprecedented scope of the disaster and the as yet unknown

impact on future marine generations of wildlife, it may take years to assess the full extent
of the devastation to the marine life in the Gulf and it may be decades before the marine
environment is able to completely recover. Thus far the impact of the oil and other
chemicals discharged into the Gulf during the Deepwater Horizon oil spill disaster has
been devastating to marine life upon which Plaintiffs’ businesses rely.
77.

The discharge of crude oil from the Macondo well and the spraying of

dispersants into the Gulf of Mexico and Florida territorial waters has caused and will
continue to cause a direct and proximate loss of revenue, profits and/or loss of earning
capacity to Plaintiffs. The fact that the reputation of the geographic areas in which
Plaintiffs operate has been severely tainted, Plaintiffs have experienced and continue to
experience significant business damage due to a significant decrease in clients and
increase in cancellations of business opportunity with the likely long term and possibly
permanent loss of customers and potential customers.
78.

Plaintiffs were physically exposed to the subject chemicals on their bodies

and via inhalation while at work in Gulf waters. Each was injured as a result of the
exposure.
CLAIMS FOR RELIEF
Claims Under General Maritime Law

COUNT I
NEGLIGENCE, GROSS NEGLIGENCE AND WILLFUL MISCONDUCT OF BP
79.

Plaintiffs reallege and reaver each and every allegation set forth in all

preceding paragraphs as fully set forth herein and further state:

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80.

Plaintiffs are financially dependent on the condition of the waters of

Florida and the Gulf of Mexico and the marine life contained therein; thus when marine
life and the quality of Gulf waters perish, so does Plaintiffs’ business and income.
81.

The BP Defendants owed the Plaintiffs a duty to refrain from action that

causes damage to the Gulf waters and the marine ecosystem of Florida upon which
Plaintiffs’ properties and income are financially and economically dependent.
82.

BP owed and breached duties of reasonable care to ensure the safety of

their operations and guard against and prevent the risk of a blowout an oil spill and its
effects in the Gulf, in Florida territorial waters and of Florida shores.
83.

BP owed and breached duties of ordinary and reasonable care with respect

to the design and manufacture of the BOP and float collar used on the Macondo well.
84.

BP was injecting its dispersants at the wellhead and breached a duty of

ordinary and reasonable care with respect to the design, manufacture and use of the
chemical dispersants.
85.

At all times BP controlled and directed the response and recovery efforts

and failed to exercise reasonable care in the operation, design, implementation and
execution of the response efforts, including the injection of dispersants at the wellhead.
Additionally, as the chemicals entered Florida territorial waters, BP owed a duty, and
failed the duty, to exercise reasonable care in response efforts, including timely
mitigating of the damage caused and stopping the spread of the oil onto and around
Florida waters, shores and properties.

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86.

Defendant BP recklessly, willfully and/or wantonly failed to use

reasonably safe chemical dispersants in reasonably safe locations and quantities in
response efforts and thereby exacerbated the contamination in the Gulf of Mexico and
Florida and resulting injury to Plaintiffs.
87.

The incidents described above that caused damage to Plaintiffs,

were a proximate result of the negligence, fault, gross negligence, and/or willful
misconduct of BP through their agents, servants, employees, contractors and other
persons or entities for whose conduct

Defendant is responsible, which are more

particularly described as follows:
a.)

Failing to operate the Deepwater Horizon in a safe manner;

b.)

Operating the Deepwater Horizon in such a manner that a fire and

explosion occurred onboard, causing it to sink and resulting in an oil spill;
c.)

Failing to properly inspect the Deepwater Horizon to assure that its

equipment and personnel were fit for their intended purpose;
d.)

Failing to promulgate, implement, and enforce rules and

regulations pertaining to the safe operations of the Deepwater Horizon, which, if they had
been promulgated, implemented, and enforced, would have averted the fire, explosion,
sinking, and oil spill;
e.)

Failing to adhere to applicable safety, construction, and/or

operating regulations, including, but not limited to, regulations designed to prevent the
fire, explosion, and discharge of oil;
f.)

Failing to properly design and/or engineer the well, drilling

program, cementing program, mud program and completion program;

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g.)

Failing to take appropriate action to avoid or mitigate the accident;

h.)

Negligent implementation of policies and procedures to safely

conduct offshore operations in the Gulf of Mexico;
i.)

Failing to properly train their employees;

j.)

Failing to ascertain that the Deepwater Horizon and its equipment

were free from defects and/or in proper working order;
k.)

Failing to timely warn; Failing to provide respiratory and dormal

protective gear to Plaintiffs;
l.)

Failing to provide all reasonable cooperation and assistance

requested by the responsible officials in connection with the clean-up and removal
activities;
m.)

Failing to ensure that adequate plans, equipment, safeguards,

resources and technology were readily available to prevent and/or mitigate the effects of
the loss of control of a well and unfettered discharge of oil into the Gulf of Mexico;
n.)

Failing to timely bring the oil release under control, to prevent the

spill from migrating throughout the Gulf of Mexico;
o.)

Failing to provide appropriate accident prevention equipment;

p.)

Failing to ensure that the casing and float collar were properly

designed and installed;
q.)

Providing BOP’s that failed to properly function;

r.)

Failing to ensure that BOP’s would work as intended;

s.)

Failing to test the BOP’s to ensure that they would operate

properly;

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t.)

Recklessly altering the BOP’s and failing to use them in a safe

u.)

Failing to conduct well cementing operations properly;

v.)

Failing to employ alternative cementing operations in light of

manner;

known problems with the actual cementing operations employed;
w.)

Failing to have a reasonably adequate well control plan and

necessary equipment in case of a loss of the well;
x.)

Failing

to

exercise

reasonable

care

in

the

design

and

implementation of both well control efforts and response and recovery efforts;
y.)

Failing to insure that adequate plans, equipment, safeguards

resources, and technology were available to prevent or mitigate the quantity of hazardous
chemicals that would enter into and effect Florida territorial waters and Florida real
property.
z.)

Recklessly using dispersants so as to cause the greatest migration

and widest potential for environmental toxic exposures and effects throughout the Gulf
including Florida territorial waters and real property.
88.

Defendants were aware at all times relevant hereto that their operations

and the acts and/or omissions described above created an unreasonable risk of harm and
knew that catastrophic environmental destruction and economic loss would occur if the
well being serviced by the DEEPWATER HORIZON were to blow out.
89.

Defendants were indifferent to this risk of harm. Defendants intentionally

failed to perform the duties owed to Plaintiffs in reckless disregard of the consequences
their actions and/or omissions would have on Plaintiffs.

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90.

Moreover, Defendants acted intentionally with knowledge that their acts

would probably result in injury or in such a way as to allow an inference of a reckless
disregard of the probable consequences of their acts. Therefore, Defendants are also
liable to Plaintiffs for gross negligence and/or willful misconduct.
91.

Plaintiffs have suffered and will continue to suffer significant economic

damages and loss of business due to the impacts and the stigma caused by the impacts, on
the marine environment, fish and shellfish populations, as well as to the Gulf waters from
the oil spill disaster and related response efforts.
92.

The oil spill and subsequent response and recovery efforts that have

caused damage and continue to cause damage to Plaintiffs was proximately caused by
Defendants’ negligence, gross negligence and/or willful misconduct.
93.

Further, upon information and belief, the oil spill was proximately caused

by the Defendants’ violation of applicable federal safety, construction, or operating
regulations and/or by violations of such regulations by an agent or employee of the
Defendants and/or a person acting pursuant to a contractual relationship with Defendants.
94.

Defendants had a duty to conform their conduct in such a manner as to

assure that a blowout would not occur, that the Deepwater Horizon would not be
destroyed and sink, that an uncontrolled oil spill would not result and that adequate well
control and response measures would exist in case of emergency pursuant to federal and
Florida law.
95.

Defendants failed to conform their conduct to the appropriate legal

standard, thereby breaching their duty to assure that a blowout would not occur, that the
Deepwater Horizon would not be destroyed and sink, that an uncontrolled oil spill would

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not result and that adequate well control and response measures would exist and be
properly implemented in case of emergency pursuant to federal and Florida law.
96.

Defendants’ substandard conduct in failing to prevent the blowout, the

ensuing destruction and sinking of the Deepwater Horizon, and the uncontrolled
discharge of oil from the Macondo well into the Gulf of Mexico and Florida waters
pursuant to federal and Florida law was the cause-in-fact of the injuries, harm, and
damages suffered by the Plaintiffs.
97.

Defendants’ substandard conduct in failing to prevent and/or contain the

blowout that resulted in the sinking of the Deepwater Horizon and the subsequent oil spill
from the Macondo well was the legal cause of the Plaintiffs’ injuries, harm, and damage.
98.

In addition, and/or in the alternative, the blowout, fire, explosion,

destruction of the Deepwater Horizon and ensuing oil spill were caused by defective
equipment and would have been prevented by non-defective equipment, including the
BOP and float collar, which were in the care, custody, and control of the Defendants and
over which the Defendants had garde. Defendants knew or should have known of these
defects and Defendants are therefore liable for the defects.
99.

BP has taken responsibility for the oil spill and cleaning up the oil spill, as

former BP Chief Executive, Tony Hayward, had issued a statement on the BP website
that BP is “… taking full responsibility for the spill and we will clean it up.” BP has
therefore admitted its liability for the oil spill.
100.

BP’s duties are non-delegable.

101.

It was foreseeable that the Defendants’ actions and/or omissions, resulting

in the blowout of the Macondo well, the sinking and destruction of the Deepwater

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horizon, and the ensuing uncontrolled oil spill from the Macondo well, would
proximately cause the damage, injury, and harm that Plaintiffs did suffer and will
continue to suffer, as alleged herein.
102.

The injuries to the Plaintiffs were also caused by or aggravated by the fact

that Defendants failed to take reasonably necessary actions to mitigate the dangers
associated with their operations.
103.

As a direct and proximate result of the Defendants’ negligence and gross

negligence, Plaintiffs have each suffered and will continue to suffer significant physical,
economic and other damages in excess of $75,000.00 and are entitled to recover
monetary damages, including but not limited to diminution of value to business,
diminished value of real and personal property, loss of income and revenue, loss of
business, good will, stigma damages, loss of natural marine resources, and any incidental
or consequential damages resulting from Defendants’ conduct.
104.

As a direct and proximate result of the negligence of the Defendants, the

Plaintiffs’ suffered bodily injury and resulting pain and suffering, disability and
disfigurement, mental anguish, loss of the capacity for the enjoyment of life, expense of
hospitalization, medical and nursing care and treatment, loss of earnings, loss of ability to
earn money, and aggravation of a pre-existing condition.

These losses are either

permanent or continuing in nature and Plaintiff will continue to suffer these losses in the
future.

Plaintiffs’ physical injuries required medical care in the past and will likely

require on going care in the future. The Defendants are liable jointly and severally for
Plaintiffs’ damages resulting from Defendants negligence and gross negligence. As a
result of Defendants’ gross negligence, Plaintiffs are also entitled to punitive damages.

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WHEREFORE, Plaintiffs’, demand judgment against the Defendants, BP
EXPLORATION & PRODUCTION, INC., a Delaware corporation, BP AMERICA
PRODUCTION & COMPANY, a Delaware corporation, BP, P.L.C., a foreign corporation, , and
AIRBORNE SUPPORT INTERNATIONAL, INC., a Louisiana corporation, for damages
together with interest, costs, and attorney’s fees, and demand trial by jury of all issues triable as
of right by jury.

Claims Under The Oil Pollution Act As to BP Defendants
COUNT II
(Economic Loss)
105.

Plaintiffs reallege and reaver each and every allegation set forth in all

preceding paragraphs as fully set forth herein and further state:
106.

Under the Oil Pollution Act, 33 U.S.C. §2701, et seq (“OPA”), “each

responsible party for a vessel or facility…from which oil is discharged…is liable for
removal costs and damages”, including “the loss of profits or impairment of earning
capacity due to the injury, destruction, or loss of real property, personal property, or
natural resources, which shall be recoverable by any claimant.” 33 U.S.C. §2702.
107.

A responsible party in the case of a vessel is any person owning,

operating, or demise chartering the vessel. 33 U.S.C. §2701(32)(A). A responsible party
for an offshore facility is the lessee or permittee of the area in which the facility is
located. 33 U.S.C. 33 U.S.C. §2701(32)(C). A lessee is any “person holding a leasehold
interest in an oil or gas lease on lands beneath navigable waters (as that term is defined in
section 1301(a) of Title 43) or on submerged lands of the Outer Continental Shelf,

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granted or maintained under applicable State law or the Outer Continental Shelf Lands
Act (43 U.S.C. 1331 et seq.).” 33 U.S.C. §2701(16).
108.

For purposes of determining the responsible parties for a mobile offshore

drilling unit, it is first deemed to be a tank vessel and then treated as an offshore facility
for excess liability. 33 U.S.C. §2704(b) (1)&(2).
109.

At all pertinent times herein, BP leased the Deepwater Horizon. BP was

also a lessee in the Mississippi Canyon, Block 252 lease granted by the United States
Mineral Management Services (hereinafter “MMS”) under which the Macondo well was
drilled by the Deepwater Horizon. BP was the designated operator for said lease.
110.

The United States Coast Guard identified BP as responsible party pursuant

to OPA. Thus, BP’s strictly liable under OPA for economic damages that resulted from
the oil spill.
111.

Defendant, BP is not entitled to limit its liability under Section 2704(a) of

OPA because the oil spill disaster was proximately caused by its gross negligence, willful
misconduct, or violation of applicable safety, construction or operating regulations as
alleged above.

Additionally, BP explicitly waived the right to raise the statutory

limitation on liability under OPA.
112.

As a result of the oil spill and the resulting damages to the natural

resources in the Gulf of Mexico, Plaintiffs have sustained and will continue to sustain a
loss of profits and/or impairment of earning capacity, as alleged above.
113.

As a result of the oil spill and the resulting damage to the marine

environment in the Gulf of Mexico, Plaintiffs are entitled to damages pursuant to OPA,
Section 2702(b)(2)(E), which allows for “[D]amages equal to loss of profits or

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impairment of earning capacity due to the injury, destruction, or loss of real property,
personal property, or natural resources, which shall be recoverable by any claimant.”
114.

It was foreseeable that a massive oil spill in the Gulf of Mexico would

cause economic harm to Plaintiff’s businesses in Florida, such as Plaintiffs’.
115.

Plaintiffs have satisfied all of the administrative requirements of 33 U.S.C.

§2713(a) & (b), by the submission of all claims brought herein to the Gulf Coast Claims
Facility (hereinafter “GCCF”) and/or to BP. Neither BP nor the GCCF has timely paid
Plaintiffs’ claims and so Plaintiffs filed this complaint.
116.

Plaintiffs are entitled to recover from BP for economic damages

occasioned as a result of the oil spill in amounts to be determined by the jury.

Strict Liability Pursuant to The Florida Pollutant Discharge Prevention
And Control Act Fla. Stat. §376.011, et seq. as to BP Defendants
COUNT III
117.

Plaintiffs reallege each and every allegation set forth in all preceeding

paragraphs as if fully restated here.
118.

At all relevant times, Defendant, BP, had a statutory duty to Plaintiffs to

maintain and operate the Deepwater Horizon and the Macondo well so as to not create or
sustained hazardous conditions due to the discharge of pollutants as defined by the
Florida Pollutant Discharge Prevention and Control Act (the “FPDPCA”), Fla. Stat.
§376.011, et seq.
119.

Pursuant to Section 376.041 of the FPDPCA, the discharge of pollutants

into or upon any coastal waters, estuaries, tidal flats, beaches, and lands adjoining the

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seacoast of the State of Florida is prohibited. The FPDPCA holds “Responsible Parties”
liable or the discharge of pollutants in violation of its provisions.
120.

Pursuant to Section 376.031(20)(a) and (c) of the FPDPCA, BP is a

“Responsible Party” and therefore liable under the FPDPCA, because it was an operator
of the Deepwater Horizon and a lessee of the area where the Deepwater Horizon and the
Macondo well were located. BP was designated as a “Responsible Party” by the U.S.
Coast Guard under the Oil Pollution Act of 1990, 33 U.S.C. §274.
121.

At all relevant times, Defendants breached its statutory duty to Plaintiffs

by discharging, or allowing to be discharged, crude oil and other pollutants and
hazardous substances into the Gulf of Mexico and then negligently allowing or causing
the massive oil spill to migrate into Florida’s marine and coastal waters and shores in
violation of the FPDPCA. Once present there, Defendants added chemical dispersants
onto the oil, creating and enlarging the pollutant hazards and their movement into Florida
territorial waters and real property.
122.

Defendant, BP is liable under the FPDPCA for the discharge of pollutants

or hazardous substances into or upon the surface waters of the state and lands, and failing
to obtain required permits before discharging pollutants and hazardous substances into
the surface waters of the state and lands. Fla. Stat. §376.302.
123.

Defendant is strictly liable to Plaintiffs under the Act, §376.205, which

provides in pertinent part:
… any person may bring a cause of action against a responsible party
in a court of competent jurisdiction for damages, as defined in §376.031,
resulting from a discharge or other condition of pollution covered by
§376.031-376.21. In any such suit, it shall not be necessary for the person
to plead or prove negligence in any form or manner. Such person need
only plead and prove the fact of the prohibited discharge or other pollutive

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condition and that it occurred.
124.

The Florida Act provides that “[e]ach responsible party is liable to any

affected person for all damages as defined in Section 376.031, excluding natural resource
damages, suffered by that person as a result of the discharge.” Fla. Stat. §376.12(5).
125.

The Florida Act defines “damage” as “the documented extent of any

destruction to or loss of any real or personal property…including all living things except
human beings, as the direct result of the discharge of a pollutant. Fla. Stat. §376.031(5).
126.

The Florida Act defines “persons” as “any individual, partner, joint

venture, corporation; any group of the foregoing, organized or united for a business
purpose; or any governmental entity, Fla. Stat. §376.031(4).
127.

As “persons” under the Florida Act, Plaintiffs are entitled to damages for

the destruction to or loss of any real or personal property.
128.

Defendant, BP is not entitled to a limitation or defense for the costs of

removal, containment, and/or abatement of the Spill because the Spill resulted from their
willful or gross negligence or willful misconduct, and/or the violation of applicable
federal and/or state safety, construction or operating regulations and/or rules.
129.

The immediate discharge from the Spill occurred into waters outside the

territorial limits of Florida; however, additional tortious acts committed by BP and parties
over whom it exercised control in lands and waters within the territorial limits of Florida
have directly affected and contributed to cause the migration and discharge into Florida
territorial waters and shores of the subject pollution and are reasonably expected to
continue.

The spill and subsequent dispersant/petroleum amalgams, therefore, are

prohibited discharge and pollutive condition under the FPDPCA.

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130.

Pursuant to Section 376.205, Plaintiffs are entitled to reasonable attorney’s

and expert witness fees.
WHEREFORE, Plaintiffs, demand judgment against Defendants in an
amount which will adequately compensate them for actual damages herein. In addition,
Plaintiffs seek punitive damages against Defendants, the amount of said punitive
damages to be set by a jury. Plaintiffs also seek pre-judgment and post-judgment interest,
costs, attorney’s fees, along with any other damages available, and demands trial by jury
of all issues triable as of right by jury.
Negligence of AIRBORNE SUPPORT INTERNATIONAL, INC.,
(Hereinafter referred to as “ASI”)
COUNT IV
131.

Plaintiffs reallege and reaver each and every allegation set forth in all

preceding paragraphs as fully set forth herein and further state:
132.

ASI owed the Plaintiffs a duty, and failed that duty, to refrain from

conduct that causes damage to the Gulf waters and the marine ecosystem of Florida upon
which the Plaintiffs’ businesses, properties and incomes are financially and economically
dependant.
133.

ASI owed and breached duties of reasonable care to ensure the safety of

their operations and to guard against and prevent injury to the environments, habitats,
waters and land into which their activities in spraying chemicals occurred.
134.

ASI owed a duty and failed in their duty to know what products they were

spraying or applying onto the waters of the Gulf of Mexico and Florida territorial waters
and real property and to know the likely impact that their activities would have upon the
enviornments on which they were spraying their chemicals. ASI applied the chemicals

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and dispersants without regard to the likely short and long term impacts likely to be
caused by the quantity and geographic broad scope of their chemical applications onto
hydrocarbons.
135.

ASI owed a duty and breached the duty to spray chemicals onto the waters

of the Gulf of Mexico including Florida territorial waters and real property in a way
which was consistent with their product labels.
136.

ASI owed a duty, and breached the duty, to warn of the effects of their

spraying activities to Plaintiffs and all those who would be potentially injured or
damaged by their activities in a time frame which would have allowed Plaintiffs to
attempt to stop or reduce the quantity or location of the spraying activities, or
alternatively to devise plans to mitigate or prevent damage to the Gulf waters or
properties which affect their properties and or businesses.
137.

ASI owed a duty to reject spraying huge quantities of dispersants onto the

Gulf and Florida territorial waters in order to protect the Gulf ecosystem on which
Plaintiffs rely for their economic benefit. ASI knew or should have known that they
would be spraying quantities of chemicals over volumes of water in ways which had
never been tested for affect. ASI breached that duty of reasonable care.
138.

ASI, in concert with the BP defendants, committed tortious acts in Florida

territorial waters which polluted Florida territorial waters and real property with
dispersed and solubilized oil/dispersant molecular amalgams.

Due to the tortuous

spraying of dispersants onto hydrocarbons in Florida territorial waters, these molecules
were dispersed throughout Florida territorial waters at all levels of the Gulf of Mexico
waters, and traveled to the sea floor and into Florida estuaries, tidal flats, bays, and onto

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and into the soils of Florida real property. In the physical state caused by the use of the
dispersants in Florida territorial waters, the toxic chemical amalgams became more bioavailable and caused harmful contact to marine organisms at all levels of that Florida
ecosystem. The harmful contact likely caused, and is causing, injury to the chain of
living organisms, both plant and animal, from the sea floor through the water profile to
the surface, into tidal regions of Florida territorial waters and onto and into Florida real
property. Because of it solubilized state, the oil/dispersant amalgam has penetrated into
the sediments and soils of Florida properties such that it has migrated inland above the
high water marks of the shores and penetrated many feet deep into those shores and real
properties.

Superficial surface clean up is ineffective in restoration of this type of

damage.
139.

ASI owed a duty and failed in its duty of exercising reasonable care in the

use of dispersants repetitiously in the same and contiguous areas, and in the type of the
dispersants used.
140.

ASI owed a duty and failed in that duty to mitigate the damages caused by

the negligent activities in order to prevent its harm or to reduce the quantity of hazardous
chemicals that would enter into and effect the Gulf of Mexico and Florida territorial
waters and real property.
141.

As a direct and proximate result of the Defendants’ ASI’s negligence,

Plaintiffs have each suffered and will continue to suffer significant economic and other
damages in excess of $75,000.00 and are entitled to recover monetary damages, including
but not limited to, diminution of value to business, diminished value of real and personal
property, loss of income and revenue, recoupment of expenses used to mitigate and

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support their business once injured, loss of business goodwill, stigma damages, loss of
customer base, and all other consequential and incidental damages resulting from
Defendants’ conduct. The BP and ASI defendants are liable jointly and severally for
Plaintiffs’ damages resulting from Defendants’ negligence.
142.

As a direct and proximate result of the negligence of the Defendants, the

Plaintiffs’ were physically exposed to the subject chemicals on their bodies and via
inhalation while at work in the Gulf waters.

Each was injured as a result of said

exposure, suffered bodily injury and resulting pain and suffering, disability and
disfigurement, mental anguish, loss of the capacity for the enjoyment of life, expense of
hospitalization, medical and nursing care and treatment, loss of earnings, loss of ability to
earn money, and aggravation of a pre-existing condition.

These losses are either

permanent or continuing in nature and Plaintiff will continue to suffer these losses in the
future. As a result of Defendants’ gross negligence, Plaintiffs are also entitled to punitive
damages.
WHEREFORE, Plaintiffs, demand judgment against Defendants in an
amount which will adequately compensate them for actual damages herein. In addition,
Plaintiffs seek punitive damages against Defendants, the amount of said punitive
damages to be set by a jury. Plaintiffs also seek pre-judgment and post-judgment interest,
costs, attorney’s fees, along with any other damages available, and demands trial by jury
of all issues triable as of right by jury.
COUNT V
DERIVATIVE CLAIM OF PLAINTIFF, AUSTIN NORWOOD
144.

Plaintiff realleges and reavers each and every allegation as if fully set forth

herein and further states:

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145. At all times material hereto, the Plaintiff, MARGARET NORWOOD, was and is the
lawful wife of the Plaintiff, AUSTIN NORWOOD.
146. As a direct and proximate result of the negligence of the Defendants, Plaintiff,
MARGARET NORWOOD, has suffered and will continue to suffer the loss of her husband’s
services, support, consortium and the care and comfort of his society.

WHEREFORE, Plaintiffs, demand judgment against Defendants in an amount
which will adequately compensate them for actual damages herein. In addition, Plaintiffs
seek punitive damages against Defendants, the amount of said punitive damages to be set
by a jury. Plaintiffs also seek pre-judgment and post-judgment interest, costs, attorney’s
fees, along with any other damages available, and demands trial by jury of all issues
triable as of right by jury.
Respectfully submitted,

By: s/ Robert J. McKee___________
ROBERT J. McKEE (# 0972614)
Email: [e-mail]
The Law Offices of Krupnick,
Campbell, et al
12 Southeast 7th Street - #801
Fort Lauderdale, Florida 33301
Telephone: [phone] #8619
Facsimile: [phone]
Attorney for Plaintiffs
Co-Counsel for Plaintiffs
STUART H. SMITH (17805)
Email: [e-mail]
365 Canal Street, Suite 2850
New Orleans, Louisiana 70130
Telephone: [phone]
Facsimile: [phone]
Attorney for Plaintiffs

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