Harris v. Kellogg, Brown & Root Servs., Inc.

• Decision Date: 16 December 2015
• Docket Number: Civil Action No. 08-563
• Citation: 151 F.Supp.3d 600
• Parties: Cheryl A. Harris, Co-Administratrix of the Estate of Ryan D. Maseth, deceased, and Douglas Maseth, Co-Administrator of the Estate of Ryan D. Maseth, deceased, Plaintiffs, v. Kellogg, Brown & Root Services, Inc., Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

151 F.Supp.3d 600

Cheryl A. Harris, Co-Administratrix of the Estate of Ryan D. Maseth, deceased, and Douglas Maseth, Co-Administrator of the Estate of Ryan D. Maseth, deceased, Plaintiffs,

v.Kellogg, Brown & Root Services, Inc., Defendant.

Civil Action No. 08-563

United States District Court, W.D. Pennsylvania.

Signed December 16, 2015

Patrick K. Cavanaugh, Stephen J. Del Sole, William S. Stickman, IV, Del Sole Cavanaugh, Pittsburgh, PA, for Plaintiffs.

Daniel L. Russell, Jr., Kurt J. Hamrock, Raymond B. Biagini, Covington & Burling LLP, Lawrence S. Ebner, Shannon G. Konn, Mckenna Long & Aldridge LLP, Washington, DC, Joseph L. Luciana, III, John R. Dingess, Kari M. Ashcroft, Dingess, Foster, Luciana, Davidson & Chleboski LLP, William Wickard, K & L Gates LLP, Pittsburgh, PA, Warren W. Harris, Bracewell & Giuliani LLP, Houston, TX, William J. Sayers, McKenna Long & Aldridge LLC, Los Angeles, CA, for Defendant.

MEMORANDUM OPINION

NORA BARRY FISCHER, United States District Court

I. INTRODUCTION

This is a wrongful death and survival action brought by Plaintiffs Cheryl Harris and Douglas Maseth (“Plaintiffs”) against government contractor Kellogg, Brown & Root Services, Inc. (“KBR”), arising from the death of Plaintiffs' son, Staff Sergeant Ryan Maseth, (“SSG Maseth”), who was killed in 2008 while showering at a military base in Iraq where KBR had operations and maintenance responsibilities under government contracts. (Docket No. 209). The case returns to this Court on remand from the United States Court of Appeals for the Third Circuit with specific directives to decide a conflict of law issue¹ concerning whether the claims and defenses raised by the parties are governed by one of the proportional liability systems utilized by Texas or Tennessee which permit the jury to assign fault to immune non-parties, or Pennsylvania's joint and several liability system which permits the jury to only assign fault between the parties to the case. See Harris v. Kellogg Brown & Root Services, Inc. , 724 F.3d 458, 482 (3d Cir.2013). The conflict of law decision is of great importance to the litigation because the Court of Appeals' Opinion provided a “framework that establishes the contours” of the political question doctrine, the application of which may result in certain of Plaintiffs' claims being rendered nonjusticiable if the jury is asked to assign a percentage of fault to the United States, as a non-party, which may be authorized by the apportionment laws of Texas and Tennessee. Id. In contrast, the Court of Appeals posited that the political question doctrine would not bar such claims if Pennsylvania's system of joint and several liability, which does not apportion fault among non-parties, is applied. Id.

Presently before the Court is KBR's motion for the application of Texas law which is opposed by Plaintiffs, who argue that Pennsylvania law should control. (Docket Nos. 319, 320, 321, 324, 326, 337, 338, 340). The parties have submitted affidavits and other documentary evidence for the Court's consideration and expressly declined the Court's invitation to engage in limited discovery on the conflict of law dispute. (Docket Nos. 321-1:8; 324-1:4; 337-1:2). This Court heard oral argument on June 2, 2015, (Docket Nos. 334, 336), and the motion has been fully briefed with the parties having submitted their respective brief, response, reply, sur-reply and post-hearing supplemental briefs and responses thereto. (Docket Nos. 319, 320, 321, 324, 326, 337, 338, 340). Through this process, KBR has effectively disavowed its alternative argument that Tennessee law should be utilized. (Docket No. 336 at 7). After careful consideration of all of the parties' arguments in light of the relevant evidence of record, and for the following reasons, KBR's motion to apply Texas law [319] is DENIED and Pennsylvania law will be applied to the apportionment and liability issues in this case.

II. FACTUAL BACKGROUND

A. Facts Relevant to Plaintiffs' Domicile

Plaintiffs Cheryl Harris and Doug Maseth are the parents of SSG Maseth and administratrix and administrator, respectively, of his estate. (Docket No. 209). Both are Pennsylvania citizens and maintain residences here. (Id . at ¶¶ 1-2). Their son was born and raised in the Pittsburgh area. (Pl. Exs. A at ¶ 2; D at ¶¶ 3-4). After graduating from a local high school in 2001, SSG Maseth enlisted in the United States Army. (Pl. Exs. A at ¶ 2; D at ¶ 4). He received service orders effective June 18, 2011 that directed him initially to Fort Benning, Georgia for Boot Camp. (Pl. Exs. A at ¶ 3; D at ¶ 5). SSG Maseth thereafter received subsequent service orders transferring him to several bases located within the United States, including: Fort Benning, (from 6/18/01 to 1/30/02 and 11/04 to 3/12/04); Fort Polk, Louisiana, (from 1/31/02 to 11/03; 3/13/04 to 4/26/04 and 5/21/04 to 6/16/04); and, Fort Bragg, North Carolina, (from 4/27/04 to 5/20/04). (Id. ).

On June 17, 2004, SSG Maseth was deployed to Iraq and stationed in Baghdad, as part of Operation Iraqi Freedom II. (Pl. Ex. A at ¶ 3). While serving his first tour in Iraq, on January 19, 2005, SSG Maseth reenlisted for an additional period of four years, to end around January 19, 2009, indicating on the reenlistment papers that his “home of record” was his father's Pittsburgh, Pennsylvania address. (Pl. Ex. B; Docket No. 321 at 12). SSG Maseth received orders to return to the continental United States in March of 2005 and was thereafter once again transferred between bases, including: Fort Polk (from 3/13/05 to 10/9/05); Fort Bragg (from 10/10/05 to 5/12/07); and Fort Campbell, which is located in both Tennessee and Kentucky (from 5/13/07 to 10/14/07).² (Pl. Ex. A at ¶ 3).

Two weeks after he was stationed at Fort Campbell, SSG Maseth purchased an off-base home in nearby Clarksville, Tennessee. (Pl. Exs. A at ¶ 5; D at ¶ 11). A Deed of Trust executed by SSG Maseth on May 31, 2007 indicates that he obtained a 30 year mortgage on the single family home which was financed through a Veteran's Administration Program. (Def. Ex. 3). Among the many boilerplate provisions, paragraph 6 provides that:

6. Occupancy . Borrower shall occupy, establish, and use the Property as Borrower's principal residence within 60 days after the execution of this Security Instrument and shall continue to occupy the Property as Borrower's principal residence for at least one year after the date of occupancy, unless Lender otherwise agrees in writing, which consent shall not be unreasonably withheld, or unless extenuating circumstances exist which are beyond the Borrower's control.

(Docket 324-3 at 8). In order to obtain this type of loan, SSG Maseth was required to make a certification under 38 U.S.C. § 3704(c)(1), which states that:

[f]or the purposes of this chapter the requirement that the veteran recipient of a guaranteed or direct home loan must occupy or intend to occupy the property as the veteran's home means that the veteran as of the date of the veteran's certification actually lives in the property personally as the veteran's residence or actually intends upon completion of the loan and acquisition of the dwelling unit to move into the property personally within a reasonable time and to utilize such property as the veteran's residence.

38 U.S.C. § 3704(c)(1).

Plaintiffs concede that their son obtained a Tennessee driver's license. (Docket No. 326 at 4). However, SSG Maseth's parents explain in their affidavits that SSG Maseth purchased the home as an investment, which was cheaper than rental options in the area and that he had no plans that they were aware of to make Clarksville, Tennessee his permanent domicile. (Pl. Exs. A at 5; D at ¶¶ 11-12). They further state that their son considered himself a Pennsylvanian, always filed Pennsylvania tax returns, maintained his 412-area code cell phone number, and nearly all of his family and friends lived in this area.³ (Id. ). In contrast, none of his family and friends lived in or around Clarksville, Tennessee. (Pl. Exs. A at ¶¶ 9-12; D at 12). Plaintiffs add that SSG Maseth lived in this home for only four and one half months until he received orders from the Army to return to Iraq for a second tour of duty. (Pl. Ex. A at ¶¶ 3, 5). SSG Maseth had two roommates who lived with him and paid him rent until their own deployments. (Pl. Ex. D. at ¶ 13). One of the roommates remained living at the home after SSG Maseth departed and continued to pay him rent. (Id. ).

SSG Maseth was deployed to Iraq on October 15, 2007. (Id. ). He was assigned to live in building LSF-B1 at the Radwaniyah Palace Complex (“RPC”) outside of Baghdad. Harris v. Kellogg, Brown & Root Services, Inc. , 618 F.Supp.2d 400, 414 (W.D.Pa.2009). He passed away on January 2, 2008, after being electrocuted while showering in his living quarters. Id. At the time of his death, SSG Maseth had a little over one year remaining on his reenlistment commitment to the Army, which would have ended around January 19, 2009, absent a subsequent extension. (Pl. Ex. B).

SSG Maseth's remains were returned to Pennsylvania and he is buried in the National Cemetery of the Alleghenies in Bridgeville, Pennsylvania. (Pl. Ex. D. at ¶ 15). He died without a will. See Certified Letters of Administration Bond Being Waived , Case. No. Mc CH CV PB 08-0000027 (dated 3/13/08). Plaintiffs opened their son's estate in the Chancery Court of Montgomery County, Tennessee at Clarksville, Probate Division, and were issued certified letters of administration by that Court on March 13, 2008. Id. Thereafter, they initiated this lawsuit against KBR by filing it in the Court of Common Pleas of Allegheny County on March 24, 2008 and did not contest KBR's subsequent removal to this Court. (Docket No. 1). In April of 2008, Douglas Maseth filed a Pennsylvania tax return seeking a refund on behalf of his son for the money that had been withheld from his pay during 2007 as he was exempt from paying Pennsylvania income taxes due to...