Fisher v. Halliburton – KBR Lawsuit Revived July 17, 2008Posted by Herb Chestnut in Uncategorized.
Tags: Fisher v. Halliburton, Good Friday Massacre, Halliburton, KBR
Last month, in a somewhat surprising decision, U.S. 5th Circuit Court of Appeals reversed a District Court ruling that employees of KBR could not sue their employer in tort. The opinion involved the so-called “Good Friday Massacre” where several truck drivers employed by KBR lost their lives when attacked by insurgents. The plaintiffs sued KBR alleging, among other things, that KBR had falsely and fraudulently induced them to come to work in Iraq with the assurances of KBR that they would be completely safe. The U.S. military was responsible for the protection of the contractors and KBR’s defense contractors used this fact to convince the lower court to dismiss the suit.
The theory behind the dismissal was the trial judge’s opinion that the plaintiff’s could not prove their case without necessarily bringing into question the Bush Administation’s policies and strategies for protection of civilians in Iraq. This being the case, the claims of the plaintiff’s necesarily involved “political questions” regarding the Executive branch and the Judicial branch, the courts, are prohibited from interfering in the function of the Executive branch.
While the theory of the defense was creative, it was a very harsh result due to the the facts of the case . The plaintiffs in the suits (four suits were consolidated and decided together) alleged that KBR had assured potential employees that they would have “[f]ull 24 hour a day U.S. military protection…” to insure safety and that employees would be “…100% safe.” On April 8, 2004, plaintiff Kevin Smith-Idol was injured when his convoy was attacked by insurgernts. The next day, several more trucks were sent on the same route resulting in more injuries and deaths to KBR employees. There were allegations that the route had been closed by the military and the Army had been engaged in a 48 hour battle with over 300 insurgents. In summary, KBR sent unarmed civilians into not only a “war zone” but an active battle.
In its decision, the 5th Circuit disagreed that there was no plausible set of facts whereby the plaintiffs could prove their case that also did not involve an inproper intrusion into the Executive Branch. Interestingly, the Court gave several factual scenarios which would allow the plaintiffs to succeed, at least at to the political question doctrine. However, the court also specifically did not rule on whether KBR had valid defenses under the “exclusive remedy” provision or other defenses it raised.
The good news is that the case is alive – the bad is that the plaintiffs are not out of the woods yet. If the attorneys for the plaintiffs can avoid the several pitfalls which most always arise when suing a government contractor in a war zone, it would open up KBR and its associated companies to many other suits outside of the Defense Base Act.