Federal court ruling in KBR case shields contractors from some wartime lawsuits

A federal appeals court ruling in a lawsuit involving a severely brain-damaged U.S. soldier will make it more difficult to sue military contractors for actions on the battlefield.

The 11th Circuit Court of Appeals handed down its ruling [pdf] last week in Carmichael vs. KBR, a civil suit brought by the wife of a soldier who received a profound brain injury in a wreck during a fuel convoy in Iraq. The appellate court held that the woman cannot sue KBR, the Houston-based civilian contractor that was delivering the fuel.

Sgt. Keith Carmichael was a so-called "shooter" riding in a tanker truck operated by KBR during a 2004 convoy north of Baghdad, an area well-known for attacks on U.S. forces as well as private contractors. When the driver lost control of the vehicle while rounding a curve, Carmichael was thrown from and pinned beneath the truck. The severe injuries he suffered left him in a permanent vegetative state.

Annette Carmichael of Atlanta sued KBR along with its former parent company, Halliburton, and the truck driver in Georgia state court in 2006. KBR got the lawsuit moved to federal court in Atlanta and then asked for dismissal, arguing that the military was in charge of the convoy.

U.S. District Court Judge Timothy C. Batten dismissed the lawsuit, finding it raised a political question involving the military role in the convoy. Carmichael appealed on the grounds that the contractor was responsible for the accident.

In last week's 2-1 ruling, the appeals court affirmed the lower court's ruling, noting that the political question doctrine "excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch."

The opinion, written by Judge Stanley Marcus and joined by Judge R. Lanier Anderson, said that adjudicating the plaintiff's claims "would require extensive re-examination and second-guessing of many sensitive judgments surrounding the conduct of a military convoy in war time."

While Judge Phyllis A. Kravitch agreed that the military controlled the convoy, she said Carmichael "sufficiently alleged a claim of negligent supervision" by requiring the driver to work unreasonably long hours.

KBR praised the decision in a statement: "This ruling confirms that contractors conducting wartime operations under the direction of the U.S. military can enjoy significant protections from tort lawsuits arising out of activities directed by the military," said KBR Senior Vice President and General Counsel Andrew D. Farley.

In its report about the 11th Circuit's decision, Reuters notes that the Fifth Circuit Court of Appeals ruled last year that a case involving convoy truck drivers killed or injured in Iraq must be heard. Tommy Fibich, an attorney representing the families of the drivers, says the decision to allow convoys to leave the base was not political but was KBR's, and he's not alone:
Mike Doyle, a Houston lawyer representing National Guard soldiers who are suing KBR over exposure to a toxic form of chromium in Iraq, agreed with Fibich that the two appellate court decisions appeared to run in contrast to each other, but also believed this was due to the facts involved.
As Facing South has reported, KBR has also come under criticism for its use of toxic burn pits in war zones, the electrocution deaths and poisonings of U.S. soldiers, rapes of its contract employees in Iraq, and subcontractors' poor treatment of migrant workers.