Court Revives Suit Over Electrocuted Guardsman

(CN) - A defense contractor may be liable under Iraqi law for the electrocution death of a National Guardsman, the 5th Circuit ruled.

Sgt. Christopher Everett of the Texas Army National Guard was electrocuted at Camp Taqaddum in Iraq on Sept. 7, 2005, while using a power washer to clean a Humvee.

The Army attributed the 23-year-old's fatal accident to an improperly grounded wire on the generator that supplied the power washer with electricity. It relayed these conclusions to Everett's parents, Larraine McGee and Patrick Everett, in December.

Everett's parents filed suit in Texas state court against contractors Arkel International, KBR Technical Services and Kellogg, Brown & Root Services in August 2008. They claimed to have only learned four months earlier about the alleged involvement of Arkel, a Baton Rouge-based company that maintained the generator at Everett's base.

By September 2008, the couple filed identical claims in Louisiana state court.

Both cases were removed to federal courts, but the Louisiana case was stayed pending a ruling in the Texas proceedings.

In a strategic move to pursue the Louisiana case, the couple moved to dismiss their Texas case without prejudice.

Arkel, the remaining defendant to the Louisiana case, then claimed that the one-year statute of limitations in Louisiana barred the suit. The court agreed and dismissed the case with prejudice, rejecting the parents' attempt to apply a three-year window available in Iraq law.

But a majority of the New Orleans-based 5th Circuit concluded otherwise.

"Here, the conduct of alleged negligence in maintaining and repairing the generator, and the resulting injury of Sergeant Everett's death, both occurred in Iraq," Judge Leslie Southwick wrote for a three-judge panel. "Accordingly, Iraq's substantive law applies to the merits."

The federal appeals court also rejected Arkel's attempt to exempt the suit under the Coalition Provisional Authority, the transitional government established in 2003 after Saddam Hussein's regime fell. Order 17 of the law was signed one day before the authority's June 30, 2004, dissolution.

"Although CPA Order 17 provides contractors immunity from Iraqi laws relating to their contractual 'terms and conditions' and from Iraqi legal process, it does not create an immunity from Iraqi laws relating to tort claims brought in federal court in the United States, Southwick wrote.

On remand, the Eastern District of Louisiana must make a final determination as to when Everett's parents learned of the injury and Arkel's possible involvement. It must also determine whether Iraqi law allows surviving parents to pursue wrongful death claims.

Arkel claims that Iraqi Civil Code permits only dependants to bring such actions.

"We hold that a determination of whether the parents are proper parties is premature because the district court never addressed it," Southwick wrote. "The possible sources for parental standing that we found under Iraqi law make the issue viable."

In a five-page dissent, Chief Circuit Judge Edith Jones said "this otherwise time-barred case" should not have been allowed to proceed under Iraqi law.

"Sergeant Everett's parents chose, as a matter of convenience, to sue initially in Texas rather than Louisiana," Jones wrote. "They thus exposed themselves to what the majority describes as Arkel's 'compelling motion to dismiss for lack of personal jurisdiction in Texas.' Yet they knew within three or four months of the accident that their son had been electrocuted and they were informed of the potential involvement of Arkel, a Baton Rouge-headquartered company. They could have filed a timely suit in Louisiana under Louisiana law against Arkel. I would conclude that this chronology did not give rise to compelling circumstances of remedial justice."

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