McGee v. Arkel Int'l, LLC, 10–30393.
| Decision Date | 16 February 2012 |
| Docket Number | No. 10–30393.,10–30393. |
| Citation | 671 F.3d 539 |
| Parties | Larraine McGEE, as Surviving Mother of Chris Everett and on behalf of the Estate of Chris Everett; Patrick Everett, as Surviving Father of Chris Everett, Plaintiffs–Appellants, v. ARKEL INTERNATIONAL, LLC, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
OPINION TEXT STARTS HERE
Michael Patrick Doyle, Jeffrey Lewis Raizner, Doyle Raizner, L.L.P., Alan Brandt Daughtry (argued), Houston, TX, Paul Maury Sterbcow, Gen. Atty., Lewis, Kullman, Sterbcow & Abramson, New Orleans, LA, for Plaintiffs–Appellants.
Patricia Ann Krebs (argued), Skelly Bruce McCay, Andrew Joseph Quackenbos, King, Krebs & Jurgens, P.L.L.C., New Orleans, LA, for Defendant–Appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before JONES, Chief Judge, and HIGGINBOTHAM and SOUTHWICK, Circuit Judges.
The parents of a National Guardsman killed in an accident in Iraq brought suit against a civilian contractor who they claimed was responsible. They argued that Iraqi law governs the limitations period within which the suit needed to be brought. The district court held both that Iraqi law was not sufficiently proven and that the claims were barred by Louisiana's one-year prescriptive period. We REVERSE and REMAND for further proceedings.
Sergeant Christopher Everett was a Texas Army National Guardsman mobilized onto active duty in the United States Army and deployed to Iraq. On September 7, 2005, while at the Camp Taqaddum military base in Iraq, he was electrocuted. The accident occurred while Sergeant Everett was using a power washer to clean a Humvee. The Army's post-accident investigative report stated that the cause was an improperly connected neutral grounding wire on the generator, which supplied electricity to the power washer. The report further stated that the defect “created an open short that when closed by [Sergeant] Everett resulted in the current conducting through his body.”
The plaintiffs are Larraine McGee and Patrick Everett, parents and heirs of the deceased. They were told of their son's death soon after the accident. It was not until December 15, 2005, though, that the Army delivered to them a packet of information about what had happened. Although the plaintiffs contend they were unaware of the involvement of Arkel International, L.L.C. until April 2008, Arkel was mentioned in the documents in the packet.
At the time of the accident, Arkel's contract with the United States made it responsible for the maintenance and repair of generator equipment at Sergeant Everett's base. Arkel defends by contending the generator was not an Arkel product and Arkel was not the primary cause of Sergeant Everett's death. Instead, improper grounding of the generator was the cause.
The plaintiffs have brought suit in different venues. Arkel is a limited liability company domiciled in Baton Rouge, Louisiana. The plaintiffs are residents of Texas. In August 2008, the plaintiffs brought suit in Texas state court for damages, claiming wrongful death under Iraqi Civil Code Articles 202–203. The plaintiffs alleged that defendants Arkel, KBR Technical Services, Inc., and Kellogg, Brown & Root Services, Inc. acted negligently by failing to maintain the generator and that such negligence proximately caused Sergeant Everett's death, resulting in the plaintiffs' damages. The defendants successfully removed that action to federal court.
In September 2008, while the Texas action was pending, the plaintiffs filed an identical action in Louisiana state court. Once again, the defendants removed the action to federal court, but the action was stayed pending a judgment in the Texas proceedings. In April 2009, the Texas federal court granted the plaintiffs' motion to dismiss without prejudice, noting its belief that the plaintiffs' claims arose under Iraqi law and that any court adjudicating them would apply Iraqi law. McGee v. Arkel Int'l, LLC, 716 F.Supp.2d 572, 582 (S.D.Tex.2009). Three months later, the Louisiana federal court granted the plaintiffs' motion to dismiss defendants KBR Technical Services and Kellogg, Brown & Root Services leaving Arkel as the sole remaining defendant. That September, the Louisiana federal court lifted the stay and reopened the action.
Arkel moved for summary judgment, arguing that the plaintiffs' claims were barred by Louisiana's one-year prescriptive period. The plaintiffs argued that under Louisiana choice-of-law rules, a longer period under an Iraqi statute of limitation applied. The district court granted summary judgment and dismissed the action with prejudice. This judgment is before us today.
On summary judgment, Arkel did not present any statutory or doctrinal defenses beyond the ones we will address on this appeal. We have to decide whether, under Louisiana choice-of-law principles, Iraqi law governs this action and Iraq's three-year prescriptive period applies.
“We review a grant of summary judgment de novo, applying the same standard as the district court.” Brumfield v. Hollins, 551 F.3d 322, 326 (5th Cir.2008). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Questions of fact are viewed in the light most favorable to the nonmovant and questions of law are reviewed de novo.” Deas v. River W., L.P., 152 F.3d 471, 475 (5th Cir.1998). A choice-of-law determination is reviewed de novo. Mayo v. Hartford Life Ins. Co., 354 F.3d 400, 403 (5th Cir.2004).
The district court ruled that Iraqi law was inapplicable under Louisiana choice-of-law principles, and that the plaintiffs failed to prove Iraqi law and were barred by Louisiana's one-year prescriptive period for wrongful death and survival actions. A separate and preliminary issue was resolved in the plaintiffs' favor, namely, that Order Number 17 issued by the Coalition Provisional Authority (“CPA Order 17”) did not provide immunity to Arkel. The Coalition Provisional Authority was established in 2003 as a transitional government following the fall of Saddam Hussein's regime. It was dissolved on June 30, 2004. CPA Order 17 is applicable to contractors working in Iraq for the United States Department of Defense. Not resolved was whether parents of a deceased were proper parties under Iraqi law.
Louisiana's prescriptive period for survival and wrongful death actions is one year from the date of death. La. Civ.Code arts. 2315.1(A), 2315.2(B). The prescriptive period under Iraqi law for such claims is three years from the day on which the injured person became aware of the injury and of the person who caused it. Iraqi Civ.Code art. 232.
Sergeant Everett was electrocuted on September 7, 2005. Among the questions posed by the case is when notification to the plaintiffs of the reasons for his death was sufficient to begin the relevant statute of limitations period. The plaintiffs brought this action on September 8, 2008. The plaintiffs concede that their claims are barred under Louisiana's one-year prescriptive period. They contend that Louisiana's choice-of-law principles provide for the application of Iraqi law and, under that law, their claims were timely brought. We must determine which law controls.
Federal courts sitting in diversity apply the choice-of-law rules of the forum state to identify the substantive law that applies. Ellis v. Trustmark Builders, Inc., 625 F.3d 222, 225 (5th Cir.2010). Therefore, Louisiana choice-of-law rules are controlling, as the parties agree.
Louisiana's choice-of-law rules require us to make two decisions at this point: does Iraqi or Louisiana law apply to the merits, and which law applies to the statute of limitations issue? Marchesani v. Pellerin–Milnor Corp., 269 F.3d 481, 486 (5th Cir.2001).
Civil Code Article 3542 sets forth Louisiana's general choice-of-law rules for tort claims . Id. Tort claims are “governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue.” La. Civ.Code art. 3542.1 The state whose policies would be most seriously impaired “is determined by evaluating the strength and pertinence of the relevant policies of the involved states” after considering the factors provided in that Article. Id.
Arkel argues that this language requires Louisiana substantive law to apply because Iraq has no interest that would be affected by claims brought by the heirs of a deceased American soldier against a possibly culpable American company. Even if that characterization is true, Article 3542 is merely the general choice-of-law rule applicable to tort claims. Id. art. 3542 cmt. (a). The Article's introductory language limits its reach: “Except as otherwise provided in this Title....” Id. art. 3542. A comment states that Article 3542 “is further implemented by specific rules contained in Articles 3543–3546” and, because Articles 3543–3546 are more specific, they should, “when applicable, prevail over” Article 3542. Id. art. 3542 cmt. (b); see generally Wartelle v. Women's & Children's Hosp., Inc., 704 So.2d 778, 783 (La.1997) (). 2
A more specific rule for our purposes is in Article 3543:
Issues pertaining to standards of conduct and safety are governed by the law of the state in which the conduct that caused the injury occurred, if the injury occurred in that state or in another state whose law did not provide for a higher standard of conduct.
La. Civ.Code art. 3543. In explaining this Article's relationship to Article 3542, the comments make clear that Article 3543 will “prevail” over Article 3542 when its rules are “more specific” to the issues. Id. art. 3543 cmt. (b)...
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