On February 16, 2016, after five years of litigation and millions of dollars in legal fees, the US District Court for the Eastern District of Louisiana (J. Barbier) “effectively” dismissed the claims against private cleanup companies that responded to the Deepwater Horizon oil spill.  Why is the word “effectively” used in many of the headlines we are seeing about this very important decision?  Simply stated, the case is not over and legal fees will continue for the cleanup responders, but hopefully at a reduced level.  While this decision dismissed almost all of the claims (i.e. about 20,000), it also allows 11 claims to proceed.

 

For those in the industry (both potentially responsible parties and responders) familiar with the Oil Pollution Act of 1990 (OPA 90), it is important to note that this decision makes no reference to OPA 90’s Responder Immunity provisions.  OPA 90’s Responder Immunity has several exceptions for claims based on actions such as gross negligence or personal injury.  Since the claims against the cleanup responders in the Deepwater Horizon suit were for personal injuries, OPA 90’s Responder Immunity terms never really came into play.

 

So how did immunity arise in this decision?  Without the benefit of OPA 90’s Responder immunity, the judge looked to other well established immunity concepts and determined that the cleanup responders, who acted under the orders of the Federal On Scene Coordinator (FOSC) were entitled to “derivative” immunity pursuant to other federal laws including the Clean Water Act and Federal Torts Claims Act, provided the cleanup responders actions were consistent with the FOSC’s instructions.  And, there is the catch!  In reality, the 20,000 claims that were dismissed were ended more on a technicality.  Those plaintiffs never provided even very basic information about their claims that the cleanup responders did not follow the FOSC’s orders.  The 11 remaining plaintiffs that provided this minimal information can still proceed with their claims against the cleanup companies.