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Will the Defense Base Act foil the recent class action law suit against KBR? September 12, 2008

Posted by Aaron Walter in Uncategorized.
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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.

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Comments»

1. Marcie Hascall Clark - September 12, 2008

“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.”

Unfortunately this is seldom disclosed to the employee who has no idea he is giving away his most basic rights as provided by other US Law.

I know there are some who feel as though they are invincible and go into the War Zone even though this has been brought to their attention. Few believe that it is the truth until they land in the no win zone that is the DBA .

I would love to see a discussion here of the unconstitutionality of the Defense Base Act and of the lack of disclosure regarding it’s consequences.

2. Jana - September 12, 2008

You mean that KBR can hire uncertified electrians along with (TCN’s that do not understand english or speak english) and when a accident occures due to these people,which has caused harms to soldiers and American Contractors, you mean to tell me KBR is not liabiable for whom they hire? When does KBR take Responability for whom they hire? OR are you saying that they don’t have to, they can hire a hairdresser to do electrical work and when an accident happens they are not responsable nor liabiable?

3. Jana - September 12, 2008

Is KBR responsable for the skill level of the TCN workers whom they employed through a subcontractor… IE.Slave broker?

Also what investigations has been done to make sure the “Slave Brokers” who are subcontracted under KBR has qualified their work force to US standards and codes whom they are sending to Iraq to work? ARE they required to follow KBR policy as American Contractors are?

4. Aaron Walter - September 14, 2008

Marcie,

You are right about the lack of disclosure. There is always a paragraph about the DBA in these employment contracts, but obviously no lay person has any clue what it really means.

5. Aaron Walter - September 14, 2008

Jana, it sure doesn’t sound fair, does it?

But, KBR could embark on your comedic example of hiring a hairdressor to do electrical work. If they did, would a remedy for the eventual injury to a fellow employee due to such a stupid hire be a civil law suit in state court for damages? No, unfortunately not.

Now, that’s not to say there is no theoretical responsibility placed on an employer in KBRs situation.

First, such bold, reckless hiring moves certainly should shake confidence in these contractors by those who pay them, the United States Department of Defense and their “shareholders” the US taxpayer. However, our taxpayers don’t hear stories like Mr. Coffey’s as they rarely make news. Whatever comes from his case, one benefit to all of us is that it is encouraging an open discussion of these issues here on the web.

Second, who in their right mind would work for a company who doesn’t care about their safety? Mr. Coffey’s situation is proof positive that Al Qaeda and the extreme heat aren’t the only dangers faced by contractors. You would think that awareness of such hiring practices would discourage qualified workers from joining on with such companies, thereby harming that company’s quality of work and reputation.

Third, hiring moves that result in higher rates of injury can’t make your insurance company very happy. Just like if you get in a couple of accidents or get a DUI, your insurance company will raise your rates or drop you.

Now, dealing specifically with the larger companies like KBR, some of the above these built-in punishments might not apply:
• A company such as KBR might not be all that concerned about upsetting Congress. After all, a large enough contractor will have lobbyists parked on Capital Hill all year round.
• The contractors in this war certainly have not had to worry about a shortage of applicants for their jobs. A) They pay two to three times what similar positions in the states pay, and B) pass those costs directly to the US taxpayer who pays every dime of those salaries and more.
• Most contractors also are not all that worried about being dropped by their insurers. The US government pays the premiums for Defense Base Act insurance policies, and then reimburses the insurer, plus 15% if the injury was “war related.” So if the injury is war related, they make money for every dollar paid out to fix the injured claimant, and even for the fees of their own high priced attorneys.

Why would an insurer like AIG punish KBR? This cozy arrangement has led to huge profits for AIG, as much as 4 times what they recieve in purchase of their coverage.

The problem here it that we have an employer taking risky, cost-saving moves that normal employers can’t afford to take. However, the rules that apply here are of the normal variety – the no-fault system that provides certainty to injured employees (no negligence required to be compensable) and to employers (lots of small claims, but no $10 million ones).

6. Mark - September 15, 2008

Well KBR is always hiring someone who is not qualified. As long as they get that bonus and stuff for people passing thru Houston, TX.. Then they take away all that money for the hourly uplift and overtime stuff. That alone is probroblt $3-$4,000 a month. And then the Airfare for R&R’s they actually take the whole cost of the flight right out of our checks. That way if you don’t come back they make that money off of you also. But they get re-imbursed 101% then 2% or so with the government. So Like my last R&R I had to pay instantly $2,024.00 for my ticket it came out the day I had to sign the payroll deduction. And then I only recieved back $860.00 of it on Payroll the next month when I came back from R&R. If I would not of come back they would of kept all the $2,024.00 plus what the gov. pays them. Also not including I only was paid $1,386.00 approx. for my R&R. So I lost another $2,734.00 approx. SO I’m already out almost $5,000.00 for my R&R. I thought I was supposed to be on a stress free R&R. Well then on emails they always put out stuff we will fire you for this or that and crap and all this while on R&R. And I’m already on a my finacial woes about $5,000.00 that my family and I are losing. Just to see me. And KBR is making all that money. I also thought KBR was suppsed to pay for the flight for people if they demobed but they keep it all if the people demob while on R&R. Which I have never done. But that is just a small portion of what they do. KBR even makes a million dollars if we die as they take out an undisclosed amount on there employees from what I have heard. And I don’t see how legal it is to not pay someone in a War Zone if something happens KBR still gets paid becasue the person is still in Iraq/Afghanistan. Ect. What is wrong with all this they are making Billions a year off its contractors. And no freedom with KBR. Anyway that is all for now, Thanks

7. AIG in financial crisis, will this effect my Workers’ Compensation benefits under the Defense Base Act? « The Defense Base Act Blog - September 15, 2008

[...] enough cash to continue to pay claims. In fact, the division handling these claims has made record profits  for AIG over the past few [...]

8. Marcie Hascall Clark - September 15, 2008

” There is always a paragraph about the DBA in these employment contracts ”

My husbands contract had no explanation at all. It listed the regular family health policy, the medical evacuation policy (which was ignored), DBA insurance, and something else. Having been used to seeing most of this line up there was no question about the small addition to the list.
Who’d have guessed that this innocent looking little “addition” would turn out to be a huge “minus” for the rest of his life.

9. Plaintiff’s attempts to circumvent the Defense Base Act in negligence cases continue « The Defense Base Act Blog - March 1, 2009

[...] Also, see my previous posting regarding a this pending class action lawsuit against KBR. [...]

10. Garfield Bratcher - April 2, 2009

Why KBR can’t fix electrical problems in Iraq.They have a seven day class for electricians you can’t learn to be an electrician in seven days the class this week is different from the next class what you learn in class is not what you encounter in the field I came through a class and three so called electricians on the seventh day did’nt know what a rcd was one instructor called electricians coming thru classes dumb as rocks.When KBR unlicesned electricians sent to Texas twenty dollars for an apprenticeship license but there’s no apprenticeship program this practice was encourged by KBR to show they had a qualified work force. The electrician is broken down to apprentice, journeyman and master and all do work within different amps. and voltages with the master being unlimited. In theatre the SCW does the work . What’s his classafication? They have electrical QA’d by people who have no knowledge of the work example plumbers, carpenters, MHE these are people who left their fields to get the money and was given these jobs because of the good old boy policies in place. The needed materials are not in theatre there are millons of dollars of the wrong material items that will never be used. KBR is here to serve the solder but has lost focus tring to save a contract. Solders needs go unattended. The qualafications of their leadership team is questionable due to the good old boy network not attaining the most qualified. Now they have a policy to terminate an electrician if they make any mistake that’s not how you solve this problem but it’s a way the SLT’s down can pass the buck and not deal with the real issues.They run around giving employees days off even termination for not wearing a KBR hat or lanard. Logcap employees have better living quarters and get better service than the military. I remember Larry Lust complaining that he wanted the toilet paper truned a certain way in the rest rooms at Logcap while our solders don’t have power or a/c not working in 130 degree heat.Theres more later.

11. CUL8R - May 11, 2009

The contract does not have any clause about the Defense Base Act. It might mention life insurance but not the DBA coverage. As a matter of fact I did not know the DBA exsisted until my husband was killed.

Everyone who called to see how I was doing and how the company was treating me asked about benefits (funny how everyone asks about money). None of them had ever heard about the DBA.

If it wasnt for blogs like this wounded contractors and widows wouldnt know about the Defense Base Act. You MUST have a LAWYER!!! DBA Lawyers will help you at NO COST!! Call a lawyer and make sure you are getting all your benefits because the insurance companies and their lawyers want to give you the least amount they can.

Teresa Bruce Hyatt - October 16, 2009

My husband of 23 yrs was killed at Sadr City Bagdhad 2005. He was a carpenter for contrators KBR. On the eve of his accident, he was told to go to the Water Filltration Tanks, because he had called and reported seeing water coming out of the valves. Instead of calling the LICENCED Personal to do this job, his Supervisor said we have to stop over time pay, so for a mere $16.00 my husband lost his life. I too had never heard of DBA. KBR came to the Family Veiwing night at the Funeral Home and presented me a check of $50,000.00. They said they would also pay for all funrel expenses up to 3000.00.
They were not paying my full benefits as they should have.
I hired a Lawyer and it took 3 yrs to get what was rightfully mine.
I am still not sure if they are paying me the full amount?
I would like to know others that have suffered loss, and hear your stories. After recently reading of some of the herrific things Halliburton had done over there, I am at a lose for words. I understand from the L.A. Times written by T. Christian Miller now with ProPublic.com that on some occaisions there were bodies burned in opened pits, leaving behind unburned remains for wild dogs to come in and be seen over the different bases dragging around body parts from their mouths. Also it is been written that ice that was shipped to the troops by KBR, had already once been used to transport bodies, leaving behind body fluides and other matter in the shipped ice. These things and more can be found at: http://www.propublica.org/series/disposable-army
Teresa Bruce Hyatt
NC
mashinggrapes@msn.com

12. Joseph Arcidino - May 18, 2009

Hi my name is joseph i work in iraq n have been with KBR for almost 2 yrs …Recently i have heard that a class action lawsuit will be settling soon..This is in regard to back pay n not getting monies due..I now n have been only reciving a 75% uplift ..As i understand it is supposed to be 100..Moreover its my understanding that unless i am registered and appointed council ..Can u help ????

Herb Chestnut - May 18, 2009

Joseph,

This is the only link I could find and its an old one. I’ll let you know if I hear anything else. If you have a case name or the court in which the case is pending, that would be helpful.

http://www.davidphinney.com/pages/2005/11/class_action_fi.php

Herb Chestnut

13. craig seifert - July 5, 2009

Is their a currect class action lawsuit against KBR regarding overtime pay and how can i join it????? reply to gf7gkd@hotmail with any information you may have,

Herb Chestnut - August 26, 2009

Craig,

Have you gotten in touch with anyone yet?

Jana - January 4, 2010

yes in California. This law suit is looking at contractors working for KBR and not getting paid overtime strait pay after 40 hours. If you look at the reason SEII was hid in the Cayman Islands you will know that not only was this shell company used to evade taxes, but also KBR had tried to say that they were a head hunter for SEII, who did not pay overtime expenses to their empolyee’s. Congress has showed that indeed these contractors hired under SEII by KBR were In FACT an employee of KBR and NOT A independant contractor.

14. Kevin D Minniefield - July 14, 2009

Hi my name is Kevin, I’ve been with KBR going on 4yrs now, only recieveing the 75% uplift, why is this when the goverment provides 100% to KBR, what happens to the other 25% ? and to take it one step further; why are we only paid uplift for 8hrs a day, but we work 12hrs a day 7days a week? I to would appreciate any info on this class action!!

15. karal - September 24, 2009

Hi my name is Karal, I have been working for KBR for a year. I was recently hurt while on R&R. Is there any recourse for disability. I am currently being told there is no disability. Any advise or direction given would be greatly appreciated.

Herb Chestnut - September 24, 2009

Karal,

I need more details but I do not suggest giving the specifics of your case in a public forum. Can you email me at herbert@chestnutlegal.com?

Herb Chestnut

16. ROSS PLESCIA-FEBRUARY 07, 2010 - February 7, 2010

Are there a current class action lawsuit against KBR on regarding overtime pay and how can i joint it, appreciate any information you may have,Thanks

17. Terry Brooks - April 16, 2012

I started working for KBR January 2005 until November 2011 I want to know about the overtime and uplift lawsuit and who do I need to contact.


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