Will the Defense Base Act foil the recent class action law suit against KBR? September 12, 2008Posted by Aaron Walter in Uncategorized.
Tags: Fisher v. Halliburton, Good Friday Massacre, KBR, Tort
The Fulton County Daily Report has reported that a firm right here in Atlanta, Georgia has filed a class action law suit in Fulton County Superior Court against Kellog, Root, & Brown (KBR) alleging that the company has employed poorly trained and under-qualified workers in Iraq, leading to injurious results for countless fellow employees.
I could agree with that allegation. The problem is, you guessed it, the name of this blog – The Defense Base Act. But first, let me tell you the facts of this case as set out in the above article.
The suit in question is filed on behalf of Curtis “Bubba” Coffey, who was injured when a co-worker, a Kenyan national, who spoke little English, moved a wrecker in the wrong direction.
“Coffey’s hand was caught in the truck’s machinery and his finger “mangled such that, even after multiple treatments and surgery, he does not have use of his finger.” The resulting pain means he can no longer work and requires heavy medication to sleep, according to the complaint.
I do not mean to sound unsympathetic to Mr. Coffey’s plight. Our firm represents numerous KBR employees in their claims for Workers’ Comp benefits, and I think the premise of KBR hiring under-qualified and overzealous employees from around the world may be right on point. We even have one client who was literally run over by a KBR armored truck driven by, you guessed it, an under-qualified driver.
However, like it or hate it, Congress passed 33 U.S.C section 905 in 1927 making the Longshore and Harbor Workers’ Compensation Act (and later the Defense Base Act extension to it) the exclusive legal remedy in work related claims coming under its auspices.
The liability of an employer….shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death. 33 U.S.C Section 905.
Therefore the Act precludes injury-related tort claims brought pursuant to state law. The Act is premised on the notion that employers accept the burden of no-fault compensation recovery in exchange for predictable liability for injuries suffered by workers.
One notable exception (although it actually does not appear in the statute) to the exclusive remedy provision of the DBA is the issue of an intentional harm done to the employee by the employer. This is the main issue the “Good Friday Massacre” suit in Texas, Fisher v. Halliburton. The claimants in that case, after a long battle, will finally get to have their day in court where they will need to show that KBR intentionally harmed their own employees, when in an apparent “make money at all costs move,” they sent a civilian convoy through an zone KBR knew to be far too dangerous. See our previous blog articles concerning the legal manuverings at the District Court level and then most recently at the 5th Circuit Court of Appeals level. Their attorneys have an will have a real challange equating greed with intentional harm rather than negligence or arrogance. Whether negligent or intentional, what KBR did to those men was terrible, and we wish them the best in their fight.
Based on the limited knowledge we have from the ablove article regarding Mr. Coffey’s, it is certainly hard to see how hiring unqualified workers resulting in a dibilitating hand injury to the innocent Mr. Coffey could been part of an intention to hurt Mr. Coffey. KBR’s hiring policies appear to be halfhearted and negligent, but that just isn’t the standard here.
To place things in perspective, these rules only apply in the employer/employee context. For example, if you get rear-ended by a tractor-trailer you can sue the trucking company employing its driver for A) your damages (including pain and suffering) B) and if the employer should never have hired that driver or should have fired him long ago because they knew he was a lousy driver you can bring an claim relating to their negligent hiring/retention.
If you are a fellow trucker for that company and that same lousy driver hits your truck pulling out of a lot, you are stuck with whatever Workers’ Compensation benefits are available to you in your state if you are hurt.
And I know what some of you might be thinking – why not just file suits in state court against the employer, settle out of court, then bring your Defense Base Act claim against their DBA insurer having just gotten X amount of cash to go away? If you do that it gives the employer the right to file a lien for the amount of your settlement against your benefits under the DBA. In other words, you can’t come out ahead trying that.
Like Fisher v. Halliburton, we will watch this case (Coffey v. Kellogg Brown & Root, No: 2008CV154929) closely.