Families of Drivers Killed in Iraq Can’t Sue KBR

(CN) - Defense contractor KBR will not face a federal lawsuit over civilian truck drivers killed in Iraq, the 5th Circuit ruled.

Steven Fisher and Timothy Bell were killed on April 9, 2004, during an insurgent attack on their military supply convoy. Their families filed suit against KBR's predecessor, Kellogg, Brown & Root, and Halliburton, which at that time owned the military contractor.

The complaint claimed said that KBR knew its convoys were particularly vulnerable to attack on April 9, 2004, the one-year anniversary of the fall of Baghdad.

Despite this knowledge, the complaint says KBR intentionally misled the drivers about their safety during recruiting and orientation activities.

KBR cited the Defense Base Act as grounds to dismiss, noting that the 1941 law provides a uniform federal compensation scheme for the injury or death of employees working under Department of Defense contracts.

But a Texas federal judge dismissed the maneuver, treating it as a motion for summary judgment that failed because of genuine issues of material fact.

On appeal, KBR said its motion to dismiss required the court to resolve its concerns before ruling. Though the New Orleans-based federal appeals court agreed with the lower court's treatment of the motion, it said the federal law would have prevailed as a motion for summary judgment.

It first considered whether the drivers' deaths occurred because of third-party actions specifically because of their employment.

In its holding, the District Court had cited "ample evidence" to infer that insurgents attacked Bell and Fisher, "not because they drove fuel trucks for [KBR], but because they were American on the first day of Arabeen, the one year anniversary of the United States' presence in Baghdad.'"

Writing for three-judge appellate panel, however, Judge Priscilla Owen said, "The only plausible inference to be drawn from the facts in this case is the inference that Plaintiffs were attacked because of their employment." (Emphasis in original.)

"We think it self-evident that driving trucks in Iraq in support of United States military operations augmented the probability that plaintiffs would fall victim to an attack by insurgent forces, and that the character of plaintiffs' employment -providing support services to an occupying military force - increased the likelihood that plaintiffs would be targeted by forces opposed to the United States' presence in Iraq in 2004," she added.

KBR's handling of the doomed convoy amounts at best to a concurring cause for the drivers' death, with the insurgents' attack constituting another cause.

"The DBA does not carve out from its coverage employees' injuries that would otherwise be covered by the act as injuries resulting from a third party's intentional tort when there may be a concurring cause," Owen wrote. "In a case like this one, in which a third party's assault is a direct cause of the employee's injuries, we think it clear that the third party's act has 'caused' the injury for purposes of coverage under the DBA."

In an amicus brief, the United States argued that litigation of this case would "inject into the DBA's workers' compensation scheme an element of uncertainty at odds with the statute's basic purpose: providing prompt relief for employees, and limited and predictable liability for employers."

Owen concluded that the DBA prevents a fraud claim for a covered injury.

"It is a generally accepted proposition of workers' compensation law that an employer's deceit that precedes and helps produce an otherwise compensable injury merges into that injury for purposes of compensation coverage," she wrote.

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