Carmichael v. Kellogg, Brown & Root Services, Inc., 1:06 CV 507 TCB.

• Citation: 450 F.Supp.2d 1373
• Decision Date: 19 September 2006
• Docket Number: No. 1:06 CV 507 TCB.,1:06 CV 507 TCB.
• Parties: Annette CARMICHAEL, Individually and as Guardian for Keith Carmichael, an incapacitated adult, Plaintiff, v. KELLOGG, BROWN & ROOT SERVICES, INC., Halliburton Energy Services, Inc. and Richard Irvine, Defendants.
• Court: U.S. District Court — Northern District of Georgia

Page 1373

450 F.Supp.2d 1373

Annette CARMICHAEL, Individually and as Guardian for Keith Carmichael, an incapacitated adult, Plaintiff, v. KELLOGG, BROWN & ROOT SERVICES, INC., Halliburton Energy Services, Inc. and Richard Irvine, Defendants.

No. 1:06 CV 507 TCB.

United States District Court, N.D. Georgia, Atlanta Division.

September 19, 2006.

Davis Kingsley Loftin, Peter A. Law, Peter A. Law, P.C., Atlanta, GA, Keenan R.S. Nix, Nix, Graddock & Crumpler, PC, Decatur, GA, for Plaintiff.

Jonathan R. Friedman, McKenna Long & Aldridge, Atlanta, GA, Kurt James Hamrock, McKenna Long & Aldridge, Washington, DC, for Defendants.

ORDER

BATTEN, District Judge.

I. Background

On May 22, 2004, Sergeant Keith Carmichael, a soldier in the United States Army, was serving as a military escort for a convoy of trucks allegedly owned and operated by Defendants Kellogg, Brown & Root Services, Inc. and Halliburton Energy Services, Inc. Carmichael was a passenger in a tractor-trailer driven by Defendant Richard Irvine, a civilian who, according to Plaintiff, was an employee of both Defendants.

While traveling from Logistics Support Area Anaconda to Al Asad, Iraq, Irvine lost control of the tractor-trailer and drove off the road, whereupon the tractor-trailer overturned in a ravine. Despite wearing a seatbelt, Carmichael was partially ejected from the cab of the tractor. His head and chest were pinned between the tractor and the ground. Six to seven minutes passed before rescuers could dislodge his body. During this time he experienced a loss of oxygen to his brain. As a result, he suffered massive injuries and is now in a permanent vegetative state.

On February 1, 2006, Carmichael's wife, Plaintiff Annette Carmichael, individually and as her husband's guardian, filed this action in state court, alleging that Irvine negligently operated the tractor-trailer at an excessive speed and failed to maintain control of the tractor-trailer, thereby causing the accident. She claims that the corporate Defendants are vicariously liable for Irvine's allegedly negligent conduct under the doctrine of respondeat superior. She also contends that they are directly liable for negligently selecting, training and supervising Irvine.

All three Defendants have filed motions to dismiss the complaint, arguing two grounds. First, Defendants contend that Plaintiff's claims are nonjusticiable under the political question doctrine. Second, Defendants contend that as military defense contractors they are immune from liability under the combatant activities exception to the Federal Tort Claims Act ("FTCA").

II. Discussion

A. Standard on Motion to Dismiss

The law in this Circuit governing motions to dismiss pursuant to Rule 12(b)(6) for failure to state a claim is well settled. Dismissal of Plaintiff's claims is suitable only when no construction of the factual allegations will support the cause of action on the basis of a dispositive issue of law. Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171, 1174 (11th Cir.1993).

B. Defendants' Motions to Dismiss

1. Political Question

The political question doctrine is a function of the separation of powers among the three branches of government, and it "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." Japan Whaling Ass'n v. Am. Cetacean Soc., 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986).

In Baker v. Carr, the Supreme Court set forth six elements indicative of a nonjusticiable political question:

(1) a textually demonstrable constitutional commitment of the issue to a coordinate political department;

(2) a lack of judicially discoverable and manageable standards for resolving it;

(3) the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;

(4) the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;

(5) an unusual need for unquestioning adherence to a political decision already made; or

(6) the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). These tests are "probably listed in descending order of both importance and certainty." Vieth v. Jubelirer, 541 U.S. 267, 278, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004). At least one of these elements must be evident for the political question doctrine to apply. Baker, 369 U.S. at 217, 82 S.Ct. 691.

Defendants contend that the first element is implicated because Plaintiff's complaint necessarily raises issues that are committed to the discretion of the political branches of government. Defendants argue that because the route and speed of convoys are set by the military and not by civilian drivers, the conduct of the military and its handling of supply convoys used to support ongoing military operations would necessarily be questioned were this case allowed to go forward.

Defendants also argue that the second factor applies to this case because no judicially manageable standards exist for the resolution of the issues. Defendants claim that if this case is not dismissed, the Court will be required to evaluate the conduct of both the military and Defendants without having any standards with which to do so.

Finally, Defendants claim that the third and fourth Baker factors apply because the standards of interaction between the military and civilian contractors in a combat zone require initial policy decisions clearly committed to the discretion of the political branches, and a judicial decision calling into question the conduct of the United States concerning its ongoing military efforts in Iraq would express a lack of respect due to the coordinate branches of government that oversee those war efforts.

In support of their argument, Defendants cite several cases barring claims because of the political question doctrine, including Nejad v. United States, 724 F.Supp. 753 (C.D.Cal.1989); Bentzlin v. Hughes Aircraft, 833 F.Supp. 1486 (C.D.Cal.1993); Zuckerbraun v. Gen. Dynamics Corp., 755 F.Supp. 1134 (D.Conn. 1990); WHITAKER v. KELLOGG BROWN & ROOT, INC., No. 405-CV-78, 2005 WL 2303546, 2006 U.S. Dist. LEXIS 45708 (M.D.Ga. July 5, 2006); and Smith v. Halliburton Co., No. H-06-0462, 2006 WL 25213262006 U.S. Dist. LEXIS 61980 (S.D.Tex. Aug. 30, 2006).

The Court has reviewed the cases cited by the parties, as well as several other authorities, and concludes that the court in Lessin v. Kellogg Brown & Root, No. H-05-01853, 2006 U.S. Dist. LEXIS 39403 (S.D. Tex. June 12, 2006), best states the test for cases in which a member of the United States military is injured or killed as a result of the alleged negligence of a government defense contractor working with the military: the plaintiff's claims are barred by the political question doctrine if "military decision-making or policy would be a necessary inquiry, inseparable from the claims asserted." Id. at *7.

In Lessin, a member of the United States Army was providing a military escort for a commercial truck convoy. While en route to Kuwait, one of the convoy trucks suffered an equipment malfunction. The truck stopped at the side of the route and Lessin attempted to assist the driver. While doing so, he was struck in the head by the ramp assist arm for the truck and suffered a traumatic brain injury.

In support of its motion to dismiss plaintiffs complaint as nonjusticiable under the political question doctrine, the defendant cited Nejad, Bentzlin and Zuckerbraun. The court correctly distinguished these cases on the ground that in each case, the court explicitly recognized that plaintiffs claims necessarily implicated military decision-making or policy.

Smith v. Halliburton Co., supra, also relied upon by Defendants here, is distinguishable on the same basis as Nejad, Bentzlin and Zuckerbraun; the plaintiff's claims, if allowed to proceed, would have required the court to "second-guess the decisions of the United States military, even though the suit is ostensibly against only military contractors." 2006 WL 2521326 at *5, 2006 U.S. Dist. LEXIS 61980 at *20.¹

The other case relied upon by Defendants is Whitaker, which was decided less than a month after Lessin.² The Whitaker case involved a soldier who was providing an armed escort for a military supply convoy. He stopped his vehicle on a bridge over the Tigris River after a vehicle in front of him hit the guard rail and fell off the bridge. Another driver struck Whitaker's vehicle from behind, knocking it close to the edge of the bridge where the guard rail had been destroyed. Whitaker tried to extricate himself from the vehicle, whereupon he fell into the river and drowned. The court found that because the convoy operation was planned by the military and the military determined the placement of vehicles in the convoy, the speed of the convoy and the distance between vehicles in the convoy, inquiries regarding military decision-making would be inextricable from the plaintiffs' claims.

The Court respectfully disagrees with the holding in Whitaker and chooses instead to follow the holding in Lessin. The Court finds that at this stage of the proceedings it is not yet certain whether inquiries into military decision-making would be necessitated by Plaintiff's claims. The discovery period has just begun, and because of the limited facts, it is impossible to say with certainty whether this case will involve a nonjusticiable political question. For example, it is conceivable that at the time of the accident Defendant Irvine was driving the truck within the speed limit set by the military yet in a manner that was negligent in some other respect. In that event, the political question doctrine would not necessarily bar Plai...