Kuwait Crash May Leave Army Contractor Liable

(CN) - A military contractor must face negligence claims over its employment of a K-9 handler who crashed into a police car in Kuwait, killing a veteran, a federal judge ruled.

David Morgan, 35, and Brian Mark Patton, 37, were Pennsylvania-born Navy reservists serving as military police officers near the Kuwait-Iraq border.

On Nov. 19, 2009, the men were traveling southbound on an alternate supply route in Buehring, Kuwait, as Morgan Lee Hanks, 25, drove northbound in a vehicle owned by Combat Support Associates, which employed him as a K-9 handler.

When Hanks sped into the southbound lane to illegally pass an eight-vehicle convoy, he crashed into the police car head-on, killing Patton and leaving Morgan with permanent brain injuries, according to the complaint.

Combat Support Associates is a Cayman Island corporation headquartered in California that provides site security and force protection to the U.S. Army at Camp Doha, Kuwait.

Morgan, a petty officer second class and Gulf War veteran, joined a 2010 federal complaint Patton's wife and the executrix of Patton's estate, Karen Amesbury, filed against Hanks, Combat Support Associates and its owners - AECOM Government Services Inc., of Fort Worth, Texas; Research and Analysis Maintenance Inc. of El Paso, Texas; and SMI International Corp., of Colorado Springs, Colo.

The defendants moved to dismiss, claiming pre-emption under the Federal Tort Claims Act, which excepts "any claim rising out of the combatant activities of the military or naval forces ... during time of war."

U.S. District Judge Edwin Kosik denied the motion in February 2012, and explained his reasoning in a brief opinion Monday.

"At the time giving rise to this suit, which occurred in Kuwait, we noted that this country was not at war and that Kuwait was not a war zone," Kosik wrote. "Kuwait was classed as a combat zone by executive order only to allow Internal Revenue consideration with respect to income being paid to all personnel."

The judge distinguished the case from unsuccessful complaints against KBR, a former Halliburton subsidiary previously known as Kellogg Brown & Root. That contractor used the political question doctrine to nix claims from the parents of a soldier electrocuted while showering at an Iraqi military base and from the wife of a military escort injured in a convoy crash in Iraq.

"In those cases where the political question doctrine barred the plaintiffs' claims, decisions made by the military had a direct impact and were intimately connected to the harm caused to plaintiffs," Kosik wrote. "Unlike in those cases, in our case, the military convoy was incidental to the accident. Neither the parties nor their vehicles were a part of the convoy. There was no military judgment involved in either parties' actions while driving that day. It was only by happenstance that the convoy was using the same road, at the same time, that the parties were involved in this accident. Further, while those cases had no judicially discoverable and manageable standards for resolving the issues, our case may be viewed as a motor vehicle accident in which we will be applying Pennsylvania law."

A jury acquitted Hanks of manslaughter and assault in October 2010. He had faced 10 years in prison.

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