Federal Judge Rejects Use of Iraqi Law in Case Over Accident on U.S. Base

Shannon P. Duffy

The Legal Intelligencer

2011-06-23 00:00:00.0

A federal judge in Pittsburgh has refused to apply Iraqi law in a wrongful death suit brought by the parents of an American soldier who was electrocuted in a shower at his Baghdad base as a result of allegedly shoddy work by a Texas-based contractor.

In her 39-page opinion in Harris v. Kellogg Brown & Root Services Inc., U.S. District Judge Nora Barry Fischer found that the Iraqi Civil Code does not apply because the death of Staff Sgt. Ryan Maseth occurred in January 2008, when the Coalition Provisional Authority orders imposed during the U.S. occupation were still in place.

Under those orders, Fischer found, American companies were immune from Iraqi law, and the laws of the soldier's "sending state" apply to third-party personal injury claims.

KBR's lawyers, led by Raymond B. Biagini of McKenna Long & Aldridge in Washington, D.C., argued that the Coalition Provisional Authority orders should not apply because the company's services arose in connection with military operations.

Fischer disagreed, saying the case "does not involve claims arising from active military combat operations," but instead stemmed from alleged negligent performance of maintenance services.

Adopting KBR's interpretation -- that since its contract supported a military base, any claim against it arose in connection with military operations -- would "encompass virtually all claims," Fischer wrote.

Biagini did not return a call seeking comment on the ruling.

According to court papers, Maseth, an Army Ranger and Green Beret, was serving his second tour in Iraq when he was electrocuted while showering in his living quarters.

The suit alleges that the source of the electric current was determined to be a water pump located on the roof, and that KBR, a former subsidiary of Halliburton, had fixed the water pump on more than one occasion and was aware that it had caused other soldiers to be shocked.

Maseth's parents, Cheryl Harris of Butler County, Pa., and Doug Maseth of Allegheny County, Pa., filed suit as the administrators of their son's estate alleging claims of negligence and wrongful death, as well as claims on their own behalf under Pennsylvania's survival statute.

Plaintiffs attorneys Patrick K. Cavanaugh, Stephen J. Del Sole and William S. Stickman IV of Del Sole Cavanaugh & Stroyd in Pittsburgh allege in the suit that KBR was negligent not only in its failure to act and to warn Maseth of known electrical hazards, but also for its negligent performance of maintenance services on the malfunctioning water pump.

KBR filed a formal answer to the suit that denied any liability.

It then moved to have Iraqi law applied to the case -- a move that, if successful, would have eliminated the survival claims of the parents and any claim for punitive damages.

In support of the motion, KBR submitted an expert report from professor Haider Ala Hamoudi of the University of Pittsburgh School of Law that outlined the applicable provisions of the Iraqi Civil Code.

But Fischer said she "questions the credibility of the defense expert" because his report failed to make any mention of the Coalition Provisional Authority orders, and his supplemental report failed to address the specific provisions about applying the law of the soldier's sending state.

Fischer also found that Hamoudi admitted in his supplemental report that the Coalition Provisional Authority orders were a "valid part of Iraqi law unless repealed," and that they were not repealed until November 2008 -- 11 months after Maseth's death.

KBR cited decisions by federal judges in Georgia and Maryland that applied Iraqi law, but Fischer said the rulings were distinguishable "because those courts were not located in Pennsylvania and did not apply Pennsylvania's choice of law rules."

Maryland and Georgia apply the principle of "lex loci delicti," or the law of the place of the wrong, Fischer noted, while Pennsylvania "has long since abandoned this approach."

In a lengthy section of the opinion, Fischer conducted a choice-of-law analysis and concluded that, even if the Coalition Provisional Authority orders did not apply, Pennsylvania law would still be the proper choice.

Fischer concluded that Iraq's interest in applying its law in this case is "questionable at best," rejecting KBR's claim that Iraqi laws are designed to foster investment in its nation by foreign companies.

"Iraq's law may be defense oriented but the defendant here, KBR, is a United States corporation, situated in Texas," Fischer wrote.

"Even though KBR operates in locations around the world, there is simply no reason for it to be shielded by Iraq's pro-defendant law in this case," Fischer wrote.

KBR cited an Eastern District of Pennsylvania decision that applied the law of Mexico in a Pennsylvania resident's slip-and-fall suit stemming from a fall on a sidewalk outside a Denny's restaurant in Mexico City on the grounds that Mexico has a strong interest in regulating the conduct of corporations in its country.

But Fischer found that the logic of that ruling did not apply because "KBR's business operations in Iraq were not akin to Denny's operations in Mexico."

Instead, Fischer said, "KBR operated in Iraq under a contract with the United States Army" and "certainly was not invited nor encouraged by Iraq's government to engage in business there."

As a result, Fischer said, "KBR's presence in Iraq was solely attributable to the United States' continued presence in that country after the initial invasion."