Naples developer sues BP over marked-down price for Pelican Bay condo

To read the developer's lawsuit against BP, click on documents below.

— A Naples developer has sued BP, saying the British oil giant wrongly denied payment on a claim for the $1.7 million it lost on the sale of a penthouse condominium at Cap Ferrat.

In the lawsuit, Gulf Bay Land Holdings Inc. says the condominium overlooking the Gulf in the well-to-do Pelican Bay community west of U.S. 41 near Pine Ridge Road was listed for $6.8 million and sold for $5.1 million after the purchasers demanded a price drop, following BP's massive oil spill in the Gulf of Mexico.

The developer says it lowered the price twice to "save the sale," as BP's clean-up efforts faltered and oil washed ashore in northern Florida last year.

A spokesman for Gulf Bay couldn't be reached for comment.

Negotiations with the buyers, Andrew and Jane Bursky, began before the spill. After the spill in April of last year, the couple was reluctant to go ahead with the purchase because "they were aware that the spill had and would continue to have an adverse effect on the value of properties on the Gulf coast," the lawsuit says.

"With each passing day after the spill and with news that oil began appearing on Florida's beaches, the Burskys expressed to Gulf Bay that their perceived risk profile had increased dramatically," the developer says in the lawsuit.

The lawsuit was filed in Collier Circuit Court. It's one of hundreds of lawsuits that have been filed against BP and other defendants over lost profits and property damage because of the oil spill. Many of those cases have been filed in federal court, not state court like Gulf Bay's.

Ricardo Reyes, the Boca Raton attorney representing Gulf Bay, couldn't be reached for comment. In the lawsuit, he argues that his client's case should be heard in state court because BP regularly does business in Florida and Collier County is where the damages happened.

According to the lawsuit, the Burskys demanded a price reduction on their condo in May 7, 2010, and the developer agreed to a purchase price of $5.25 million. On June 30, 2010, the couple asked Gulf Bay to cut the price by another $300,000, "in an effort to offset the economic risk they would be taking" with their purchase as a result of the spill. In a compromise, the developer agreed to give the Burskys a $150,000 "credit against the purchase price" to keep the sale.

In November of last year, Gulf Bay filed its claim with the Gulf Coast Claims Facility, seeking final payment for its lost profits, according to the lawsuit. The facility was created to manage the $20 billion BP put aside to pay claims related to the spill.

A spokesman for the claims agency couldn't be reached for comment.

In denying the claim, Gulf Bay stated that the claims facility directed Gulf Bay to look into alternative actions, including filing an "instant" lawsuit.

The claims in the developer's lawsuit include negligence and violation of the Florida Pollutant Discharge Prevention and Control Act. Gulf Bay wants a jury trial.

On Dec. 6, Byron Hutchinson, an attorney in Houma, La., filed a new federal lawsuit against BP, Transocean and Cameron International Corp., representing more than 100 people and businesses in Louisiana, Texas, California and Florida who say they're entitled to damages for current and "future economic harm." Some of his clients received payments, but they're not big enough to cover all their losses. Others got no money.

"We filed in federal court because it's a federal question," Hutchinson said. "The lawsuit involves the Oil Pollution Act and the Clean Water Act."

He said it's difficult for him to answer why Gulf Bay chose to file its case in state court in Collier County. Many of the federal cases have been consolidated and are being heard in southern Louisiana.

When told about Gulf Bay's lawsuit over lost profits on the sale of a penthouse, Hutchinson said it seemed like a legitimate case, without knowing all the details. However, he said, it might be difficult to determine whether the selling price was more affected by the economy than the oil spill, especially in an area such as Naples, which has taken such a big hit in the downturn.

Early on, when BP was handling the claims itself, it was making big payments to "anybody and everybody," he said.

"In New Orleans, I've heard outrageous stories of waiters or waitresses, or even exotic dancers getting $10,000, $20,000 or $30,000 in the first month," Hutchinson said.

When the claims facility took over, the process to get paid got harder and the payments got smaller, he said.

"It really upset a lot of victims of the oil spill that had earned a living in and on the water of the Gulf of Mexico and they weren't seeing the same compensation as a waiter, waitress or someone in a related field," Hutchinson said.

As of Dec. 9, the claims facility had paid out nearly $5.78 billion to more than 216,000 claimants, according to its website.

Conrad Willkomm, a Naples attorney who has represented several local claimants, said he's heard of restaurant servers getting $80,000 payments for lost wages, even more than they asked for, yet others with legitimate losses and better documentation have been turned away.

"It seems like certain people in certain groups get paid out without question," Willkomm said. "But if you're not in those groups, then they give you a real hard time."

He said he may be forced to file a lawsuit for a mortgage company he's representing locally whose revenue was cut by 70 percent after the spill because of canceled loan applications.

"We're keeping our fingers crossed that we will still get approved at the claim level, before we get to that point," Willkomm said.

__ Connect with Laura Layden at www.naplesnews.com/staff/laura_layden

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