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KBR Dodges Lawsuit|From Shocked Marine

RICHMOND, Va. (CN) - A Marine who was shocked while trying to install a wiring box at the military base near Fallujah, Iraq, cannot pursue negligence claims against defense contractor Kellogg Brown & Root, the 4th Circuit ruled.

Peter Taylor had sought relief from the appellate court after a federal judge dismissed the claim in April 2010. Senior U.S. District Judge Robert Doumar had agreed with KBR that Taylor lacked subject-matter jurisdiction since the political question doctrine bars negligence claims. Doumar also found that the "combat activities" exemption of the Federal Tort Claims Act pre-empts the suit.

The 4th Circuit declined to revive Taylor's claim, but it did vacate the trial court's finding about the pre-emption issue since the lack of jurisdiction removes the judges need to consider this aspect of the case.

Taylor, a hospital corpsman for the Marines, had been stationed at a camp about 15 miles outside Fallujah at the time of the July 2007 accident. A generator malfunction had incapacitated the tank ramp that troops used to maintain Marine tanks, Humvees and other vehicles.

Power outages were a recurring problem for the Marines, so Taylor and others tried to find another source of electricity for the ramp, ultimately deciding to install a wiring box and hook it up to their generator. KBR technicians who had arrived at the base to work on another repair job allegedly knew that the Marines are working with the wiring on the generator. Nevertheless, one of KBR's technicians turned on the generator power while Taylor was working on it, causing him to get electrocuted, according to the complaint.

KBR argued that Taylor's case asks the court to second-guess military policies, which implicates executive branch decisions.

In fighting to revive his negligence claim, Taylor argued that he is suing a private corporation, not the government, and that no military or executive decisions were involved in this situation. Any military orders should be taken as "external constraints", making this a lawsuit between Taylor and KBR, independently, he claimed.

The 4th Circuit disagreed, however. "Our adjudication of the claim would require a judicial assessment of military decisions made in a combat theatre - that is, decisions with respect to whether backup power was to be supplied to the tank ramp and whether the Marines should have been authorized to install a backup generator at the tank ramp on their own accord," Judge Robert King wrote for a three-judge panel.

"More specifically, an analysis of KBR's contributory negligence defense would 'invariably require the court to decide whether ... the Marines made a reasonable decision' in seeking to install the wiring box to add another electric generator at the tank ramp," he added, quoting Doumar's decision.

Since the political questions doctrine applies, the "combat activities exception is rendered moot," according to the Sept. 21 ruling, which vacated that portion of Doumar's earlier decision.

Taylor was represented by William Stickman of Del Sole Cavanaugh Stroyd in Pittsburg.

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