Fisher v. Halliburton

• Decision Date: 25 March 2010
• Docket Number: H-06-1168.,H-06-1971,Civil Action No. H-05-1731
• Citation: 703 F.Supp.2d 639
• Parties: Ingrid FISHER, et al., Plaintiffs,v.HALLIBURTON, et al., Defendants.Reginald Lane, et al., Plaintiffs,v.Halliburton, et al., Defendants.Kevin Smith-Idol, Plaintiff,v.Halliburton, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

703 F.Supp.2d 639

Ingrid FISHER, et al., Plaintiffs,

v.HALLIBURTON, et al., Defendants.

Reginald Lane, et al., Plaintiffs,

v.Halliburton, et al., Defendants.

Kevin Smith-Idol, Plaintiff,

v.Halliburton, et al., Defendants.

Civil Action Nos. H-05-1731, H-06-1971, H-06-1168.

United States District Court,

S.D. Texas,

Houston Division.

March 25, 2010.

COPYRIGHT MATERIAL OMITTED

Christina Anne Fountain, Ramon Rossi Lopez, Lopez Mchugh LLP, Newport Beach, CA, Samuel A. Houston, Thomas Scott Allen, Jr., Jennifer Bickham Swick, Cruse Scott Henderson & Allen LLP, Tobias Anthony Cole, Midani Hinkle Cole LLP, Joe W. Redden, Jr., Beck Redden & Secrest, Kenneth T. Fibich, W. Michael Leebron, II, Fibich Hampton & Leebron, Houston, TX, for Plaintiffs.

Robert Ellison Meadows, Christie Lynne Cardon, Kevin Michael Clark, Robert Bruce Hurley, Jr., King And Spalding, Houston, TX, David Kasanow, Herbert Lawrence Fenster, Raymond B. Biagini, McKenna Long & Aldridge, Washington, DC, for Defendants.

Memorandum Opinion & Order

GRAY H. MILLER, District Judge.

Pending before the court are defendants' motions for summary judgment. Fisher Dkt. 319 Lane Dkt. 146 Smith-Idol Dkt. 105. Upon consideration of the motions, the responses, the replies, the summary judgment record, the argument of counsel, and the applicable law, the motions are GRANTED IN PART and DENIED IN PART as detailed below. Additionally, the court on its own motion finds that the question regarding the scope of the Defense Base Act's exclusivity provision merits immediate interlocutory appeal under 28 U.S.C. § 1292(b). Therefore, those cases of which this order does not dispose, are hereby STAYED pending a ruling by the Fifth Circuit on those issues addressed by the court in Section I of this order.

Background

The basic facts of this case have been outlined in many of the court's previous orders. At the simplest level, the facts are these: The defendants were awarded the contract by the United States Army to supply various aspects of civilian support for the United States Army effort in Iraq. The plaintiffs were hired through a nation-wide recruiting program to work for defendants driving fuel convoys. The plaintiff in Smith-Idol drove in the Hacklen convoy, which came under attack on April 8, 2004. The drivers in the Fisher plaintiffs' case were a part of the Hamill convoy, while the driver in the Lane plaintiffs' case drove for the Longstreet convoy. Both of these convoys came under attack on April 9, 2004. The details relevant to the question before the court on summary judgment will be discussed in the court's analysis.

Summary Judgment Standard

Summary judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Carrizales v. State Farm Lloyds, 518 F.3d 343, 345 (5th Cir.2008). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; there must be an absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is “material” if its resolution could affect the outcome of the action. Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 411 (5th Cir.2007). “[A]nd a fact is genuinely in dispute only if a reasonable jury could return a verdict for the non-moving party.” Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir.2006).

The moving party bears the initial burden of informing the court of all evidence demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Only when the moving party has discharged this initial burden does the burden shift to the non-moving party to demonstrate that there is a genuine issue of material fact. Id. at 322, 106 S.Ct. 2548. “For any matter on which the non-movant would bear the burden of proof at trial ..., the movant may merely point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.” Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718-19 (5th Cir.1995); see also Celotex, 477 U.S. at 323-25, 106 S.Ct. 2548. To prevent summary judgment, “the non-moving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’ ” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting Fed. R. Civ. P. 56(e)).

When considering a motion for summary judgment, the court must view the evidence in the light most favorable to the non-movant and draw all justifiable inferences in favor of the non-movant. Envtl. Conservation Org. v. City of Dallas, Tex., 529 F.3d 519, 524 (5th Cir.2008). The court must review all of the evidence in the record, but make no credibility determinations or weigh any evidence; disregard all evidence favorable to the moving party that the jury is not required to believe; and give credence to the evidence favoring the non-moving party as well as to the evidence supporting the moving party that is uncontradicted and unimpeached. Moore v. Willis Ind. Sch. Dist., 233 F.3d 871, 874 (5th Cir.2000). However, the non-movant cannot avoid summary judgment simply by presenting “conclusory allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation.” TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir.2002); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc). By the same token, the moving party will not meet its burden of proof based on conclusory “bald assertions of ultimate facts.” Gossett v. Du-Ra-Kel Corp., 569 F.2d 869, 872 (5th Cir.1978); see also Galindo v. Precision Amer. Corp., 754 F.2d 1212, 1221 (5th Cir.1985).

Analysis

I. The Defense Base Act

Congress enacted the Defense Base Act (“DBA”), 42 U.S.C. § 1651 et seq., in 1941. The DBA has few substantive provisions of its own. Instead it incorporates the Longshore and Harbor Workers' Compensation Act (the “Longshore Act”), 33 U.S.C. § 901 et seq., and its scheme of uniform workers' compensation to persons employed on defense projects overseas as defined by the act. 42 U.S.C. § 1651(a). The Longshore Act was enacted as a humanitarian, remedial insurance scheme to provide uniform compensation for injuries sustained on the job for maritime workers not covered by the Jones Act. H.R. Rep. No. 69-1190, at 1, 3 (1926). Like the Longshore Act, the DBA contains an exclusivity provision:

The liability of an employer, contractor (or any subcontractor or subordinate subcontractor with respect to the contract of such contractor) under this chapter shall be exclusive and in place of all other liability of such employer, contractor, subcontractor, or subordinate contractor to his employees (and their dependents) coming within the purview of this chapter, under the workmen's compensation law of any State, Territory, or other jurisdiction, irrespective of the place where the contract of hire of any such employee may have been made or entered into.

42 U.S.C. § 1651(c). The issues before the court on this motion are twofold. First, whether the plaintiffs' injuries fall within the scope of the act. And second, whether and to what extent the exclusivity provision of the DBA bars all tort suits.

1. Contentions of the Parties

A. The Defendants' Arguments

The defendants argue that the DBA bars all of the plaintiffs' claims. As a threshold matter, they contend that the plaintiffs' negligence claims are expressly barred by the Act. Additionally, they urge that the scope of the DBA's exclusivity provision covers all of the plaintiffs' claims, including those for the alleged intentional torts and fraud. But, they argue that even if the exclusivity provision does not apply to some intentional torts, to achieve the policies underlying the DBA any exception for intentional torts should be exceedingly narrow-limited to “an actual, deliberate, purposeful, individuated intent to injure” the employee. Dkt. 319 at 36. They contend that Congress's policies underlying the Longshore Act were to provide workers with guaranteed recovery for injuries on the job while at the same time limiting employers' exposure to litigation. Defendants reason that because courts have difficulty determining the line between reckless negligence and intent premised on substantial certainty, any exception broader than the purposeful intent to injure standard they propose would encourage litigation and undermine one of the purposes of the Longshore Act. And, they conclude that the plaintiffs have not and likely cannot allege facts sufficient to create a genuine issue of material fact under this narrowly defined exception.

Furthermore, they contend that the DBA's exclusivity provision reaches far enough to encompass the plaintiffs' fraudulent inducement claims because the court would be forced to look at the actions of the defendants in Iraq-not just to the statements of the defendants prior to the plaintiffs' employment. Id. at 46 n. 23. Therefore, they move the court for summary judgment on all of the plaintiffs' remaining claims.¹

B. The Plaintiffs' Arguments

The Fisher and Lane plaintiffs' argument centers not around any exclusion to the DBA, but on the language of the statute itself. They argue that the DBA defines an injury as an accident and that the plain meaning of the term accident does not include conscious acts like the intentional torts alleged here. They argue that the Fifth Circuit has defined an accident as an unexpected event. And, they contend the summary judgment record amply illustrates...