Tuesday, April 12, 2011
In January of 2008, Staff Sergeant Ryan Maseth died after being electrocuted in a shower at a U.S. military base in Iraq for which private defense contractor Kellogg, Brown and Root, Inc. (KBR) contracted to provide services. In 2009, according to CNN an investigator for the U.S. Army Criminal Investigations Division deemed Maseth’s death a “negligent homicide” that resulted from a failure to ensure that electrical and plumbing work was being performed adequately by qualified technicians and a failure to inspect the work performed.
We learn from the Appellate Law Blog that since 2008, KBR has used everything from the political question doctrine to the combatant activities exemption of the Federal Tort Claims Act to evade a wrongful death lawsuit filed by the Maseth's parents. The District Court didn't buy those arguments initially, but it denied KBR's motions to dismiss without prejudice. Unhappy with this result and unwilling to proceed with discovery, KBR attempted an interlocutory appeal. Last August, the Third Circuit ruled that it was not entitled to appeal, since the District Court's ruling was not conclusive. So far, Maseth’s parents have been successful in warding off KBR’s legal challenges, but now the future of the lawsuit may depend on an interpretation of KBR’s contract with the U.S. government.
As reported in the Philadelphia Inquirer, on April 5th, KBR’s attorneys contended in the Federal District Court of Western Pennsylvania that U.S. soldiers in Iraq have no expectation of protection under U.S. law. They argue that Iraq, as the location of the accident, has more of an interest in having its law applied than does the U.S. CNN speculates that KBR is pushing for the application of Iraqi law because under Iraqi law, punitive damages are not allowed in civil cases.
Maseth’s parents counter that KBR’s contract with the Defense Department states that U.S. law should apply for all claims arising from the contract. KBR’s attorneys claim that this clause only applies narrowly to contract disputes, rather than tort claims. However, the plaintiffs point to the provisions of the contract which refer to KBR’s duties in maintain the electrical system on base, which mentions US. safety regulations and electrical codes, not Iraqi regulations or codes.
So, while KBR's other affirmative defenses remain issues in the case, for now U.S. District Judge Nora Barry Fischer will have to determine whether a wrongful death lawsuit is a claim arising from KBR’s contract with the DOD.
[Jon Kohlscheen & JT]