The DBA’s Exclusive Remedy-A License to Kill? KBR defends it’s actions
Posted by defensebaseactcomp on November 20, 2009
KBR is claiming that the DBA’s Exclusive Remedy excuses them from knowingly sending their employees into deadly danger.
The Exclusive Remedy was intended (Congressional Intent ?) to be a trade off to ensure the injured worker did not have to bring legal action against their employer in order to receive medical and disability benefits. The employee would “forthwith” receive medical care and partial replacement of the their income, but they and their family members could not bring legal action against the employer, for any reason.
With absolutely no incentive to provide the safest possible working conditions, profit will usually win over the lives put on the line. Pleasing the customer, clearing ordnance from under the power lines asap, getting those supplies to the airport, no matter the danger, are the bottom line.
When a casualty occurs the company sends in another warm body.
On the other hand, the casualty normally has to retain an attorney and fight for their very lives with AIG, CNA and others ( carrier/employer ) for the benefits that were intended to be their part of the trade off.
What happened to the casualties end of the trade off?
This is an ongoing injustice right in the face of Congress, the Department of Labor, the Department of Justice, the Department of State, the Department of Defense, the White House
and frankly it appears that no one gives a damn.
The article entitled “KBR aware convoy in harm’s way” (Page A1, Thursday) does not address some of the paramount issues in the convoy cases. KBR would like to set the record straight.
The events of the April 2004 convoy attack were tragic. We remain mindful of those who lost their loved ones as they were members of the KBR family. However, the assertion that KBR deliberately placed these men in harm’s way or failed to warn of the dangers of working in Iraq is simply false. KBR takes great care in warning and in training employees about the dangers they will face working in a war zone before they depart for Iraq.
It is important to understand the framework in which KBR and other government contractors perform their work in Iraq and Afghanistan. The executive branch and Congress decided many years ago to use civilian contractors to support the military during wartime in order to save costs in peacetime and because they could not recruit enough soldiers to meet all of their logistical needs without resorting to a draft. The Defense Base Act (DBA) was established by Congress as the process to provide coverage to civilians who are injured while supporting the military during war time. Given this exclusive remedy under the DBA, in order for these lawsuits to proceed, the plaintiffs must prove that KBR specifically intended to have the insurgents injure or kill KBR’s employees on the April 2004 convoys. The evidence does not support this allegation.
The e-mails that were the basis of the article do not tell the whole story. In context, the internal communication between KBR and the military evidence the concern KBR had for its employees. Further, the U.S. military alone decided to deploy the military supply convoys at issue here; they decided when, where and how the convoys were to be conducted. These military decisions were made based on the intelligence about insurgent threats that the military compiled through its unique capabilities and resources. Under the Political Question Doctrine and other established principles of law, it is not appropriate for courts — as litigation in these cases would require — to second-guess such wartime decisions and actions by the military that are reserved by the U.S. Constitution to the elected branches of government.
The men and women who work for KBR in Iraq do so at great sacrifice to themselves and their families. It is on their behalf that we will continue to defend the company and its actions. In turn we would hope that the media and others remain mindful that a presentation by the plaintiffs’ lawyers does not accurately reflect all of the facts.
William C. Bodie, president, KBR North American Government and Defense