Defense Base Act Compensation Blog

The Modern Day DBA Casualty

E-mails show KBR feared casualties before deadly attack

Posted by defensebaseactcomp on November 19, 2009

KBR security personnel expected casualties the night before six civilian drivers were killed and others injured in an Iraqi ambush, but sent the convoy into a combat zone anyway, according to e-mails presented in a Houston federal court Wednesday.

“There is tons of intel stating tomorrow will be another bad day,” wrote George Seagle, director of security for KBR government operations, the night before the April 9, 2004, attacks. In the e-mail presented in court, he suggested KBR halt convoys for the next day, the first anniversary of the day Baghdad fell in the U.S.-led invasion.

In a flurry of e-mails, many held under seal in the court case for the last year, various KBR employees discussed their concern about possible loss of life.

Seagle responded that he understood the pressures of big politics and contract issues might cause the fuel-delivering convoys to be sent out anyway but “we will get people injured or killed tomorrow.”

And before the ambush but on the same day, Keith Richard, chief of the trucking operation in Iraq, e-mailed KBR’s Houston headquarters saying, “we need to expedite the hiring of drivers. We need drivers in theater soon.”

Plaintiff lawyer Scott Allen presented the e-mails in a hearing before U.S. District Judge Gray Miller to determine whether a jury should hear three lawsuits against KBR.

KBR argues that as a contractor it was acting on the basis of military decisions that are not subject to review by civilian courts.

But a group of injured plaintiffs and family members of the dead allege that KBR and its former parent, Halliburton, put profit above life. They say that drivers were promised safety, but their supervisor, who had been in the military, put them in harm’s way to show the civilian company was tough enough to do jobs the military did in former conflicts.

“They were sacrificed for the profit of KBR,” said Tommy Fibich, whose client is still in a coma.

Sent back on appeal

Fibich said most of the drivers were promised that their safety would come first and they took the job to pay off debts or help put a first generation through college.

KBR lawyers argued that the e-mails and contract details are beside the point and that the case should be tossed because the military and the civilian company were intertwined and federal law prohibits courts from second-guessing military decisions.

“While KBR of course knew about the threats, the company ultimately relied on the judgments and representations of the military,” KBR attorney Ray Biagini told the judge.

Miller accepted that argument once before, tossing out all three suits on grounds that the court could not try a case questioning wartime military decisions.

But the 5th U.S. Circuit Court of Appeals sent the cases back, ruling it may be possible to try the cases without making a “constitutionally impermissible review of wartime decision-making.”

Army not party to case

The cases center on the April 2004 insurgent attack on a KBR convoy of military supply trucks, which killed six civilian truck drivers and wounded 14.

The drivers caught in the ambush were delivering fuel under a multibillion-dollar contract for KBR to transport supplies, build bases, serve meals and provide other logistical support services for American troops in the Middle East.

Plaintiffs in the Houston suits are two injured workers and the family of one who was killed in the attack.

Biagini argued that nothing has changed since the appellate court asked the judge to take another look at the case. He said KBR and the military were indivisible and KBR acted in good faith on the military’s assurances of protection.

KBR lawyers argued that there are half a dozen legal theories under which the lawsuits should be thrown out of court again.

KBR lawyer David Kasanow noted that the U.S. Justice Department sent a letter agreeing the suit should not go to trial. The government letter said the Defense Base Act protects civilian employers like KBR from being sued in a case like this unless they specifically intended employees be injured or killed.

The plaintiffs argued a jury should hear the case because the e-mails show that KBR bosses did know drivers would be injured or killed.

Miller ruled earlier this year that the U.S. Army itself will not be a party to the case. The judge is now expected to take the many legal issues under advisement.

He could toss out the case, or could remove Halliburton as a defendant. Halliburton argues it is improperly named in the suit and it had no control over the events at issue.

If Miller lets the case stand, it is scheduled for jury trial next May.

Original Story here

mary.flood@chron.com

One Response to “E-mails show KBR feared casualties before deadly attack”

  1. […] 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 […]

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