Ross v. Dyncorp, CIV.A. 02-2404RCL.

• Citation: 362 F.Supp.2d 344
• Decision Date: 31 March 2005
• Docket Number: No. CIV.A. 02-2404RCL.,CIV.A. 02-2404RCL.
• Parties: Ann H. ROSS, et al., Plaintiffs, v. DYNCORP, et al., Defendants.
• Court: U.S. District Court — District of Columbia

362 F.Supp.2d 344

Ann H. ROSS, et al., Plaintiffs, v. DYNCORP, et al., Defendants.

No. CIV.A. 02-2404RCL.

United States District Court, District of Columbia.

March 31, 2005.

COPYRIGHT MATERIAL OMITTED

Terry Collingsworth, International Labor Rights Fund, Washington, DC, for Plaintiffs.

Robert Bruce Wallace, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Washington, DC, Erin Jeanne Ashbarry, Shulman, Rogers, Gandal, Pordy & Ecker, P.A., Rockville, MD, for Defendants.

MEMORANDUM OPINION

LAMBERTH, District Judge.

This matter comes before the Court on the defendants' Motion [17] for Summary Judgment. Upon consideration of the defendants' motion, the opposition thereto, the reply brief, the applicable law, and the entire record herein, the Court concludes that the defendants' motion will be granted. Accordingly, summary judgment will be issued in favor of the defendants on all of the plaintiffs' claims, and those claims will be dismissed with prejudice. The Court's reasoning is set forth below. As summary judgment requires that the factual record be construed in the light most favorable to the non-moving party, the factual background recited below is drawn from the plaintiffs' complaint, the plaintiffs' opposition to the defendants' motion for summary judgement, and the parties' stipulations regarding facts that are undisputed.

FACTUAL AND PROCEDURAL HISTORY

This case involves wrongful death and survivorship actions brought by the family and estate of Alexander Wakefield Ross ("Ross") against Ross's former employer, DynCorp. Ross was employed by DynCorp as a computer technician under a Foreign Service Contract, which required that Ross work on projects undertaken by DynCorp pursuant to by a particular contract between DynCorp and the United States Department of State ("the Contract"). Under the Contract DynCorp was to provide aviation support services for the Columbian army's drug eradication efforts in Columbia, South America.¹ See generally Contract No. S-OPRAQ-98-C-0051, Labeled as DYNC 00156-00362, and amendments thereto Labeled as DYNC 00001-00155.

DynCorp's primary responsibilities under the Contract were "1) the eradication of narcotics through aerial fumigation, 2) the training of pilots and mechanics to fly and maintain aircraft used in the counter-narcotics efforts, and 3) the interdiction of narcotics processing laboratories and narcotics being transported within the country;" Defs.' Stmt. of Material Facts Not in Dispute ("Defs.' Stmt."), ¶ 8; and its "secondary missions" were "transport of personnel and supplies, reconnaissance, search and rescue of personnel due to downed aircraft or hostile action by narcotics producers or traffickers, medical evacuation, ferrying of aircraft, and maintenance of aircraft." Id. at ¶ 9. The Contract was awarded to DynCorp after a competitive bid process opened in 1996; and was funded, for the most part, under the relevant appropriations-authorizing provisions the federal Foreign Assistance Act. See generally 22 U.S.C. §§ 2291 et seq. (entitled: "Chapter 32. Foreign Assistance; Subchapter I. International Development; Part VIII. International Narcotics Control"). However, during fiscal year 2002, DynCorp received approximately $1.3 million in supplemental funding from the United States Department of Defense rather than through the Foreign Assistance Act, in order to obtain a "blackhawk night vision goggle pilot to train Columbian Army aviators to fly with night vision goggles." Pls.' Stmt. of Material Facts in Dispute ("Pl.'s Stmt."), 4.²

The Contract contains provisions that reference the federal Defense Base Act, 42 U.S.C. §§ 1651 et seq., which: (1) provide that DynCorp must "obtain Defense Base Act Insurance for all employees who will be working overseas under this contract[;]" Defs.' Stmt., ¶ 15; (2) "expressly reference[] the [Defense Base Act] in allocating funds for insurance[;]" id. at ¶ 15; and (3) "specif[y] that [DynCorp] shall procure [Defense Base Act] worker's compensation insurance." Id. at ¶ 17.

Ross, having been hired specifically to contribute to DynCorp's performance under the Contract, was stationed in Columbia. On or about August 1, 2002, Ross was instructed "to perform marshalling on an OV-10 aircraft stopped in Villa Garzon in the Putamayo province of Columbia," which involved "signaling the aircraft during take off and landing ... while the aircraft was `hot refueling', meaning [refueling] with its engines on and its propellers still running." Compl., ¶ 16. During this process, Ross "sustained massive injuries to the right side of his face and head[,]" which injuries were inflicted by "the propeller of an OV-10 twin engine spray aircraft." Id. at ¶ 18. On August 1, 2002, Ross died as a result of these injuries.

Although some of the facts surrounding the return of Ross's remains to the plaintiffs — his family — in Panama are disputed by the defendants, the Court will rely upon the plaintiffs' characterization of these events in keeping with the necessity of factual review favoring the non-moving party in a summary judgment inquiry. The plaintiffs learned of Ross's death on August 1, 2002, and informed DynCorp that same day of their wish that the remains first be sent to Florida for an autopsy and then returned to Ross's family in Panama. See Pls.' Stmt. at 5; Pls.' Opp. to Defs.' Mot. for Summary Judgment ("Pls.' Opp."), Ex. F (Ross Aff.), at ¶¶ 1, 6. DynCorp, however, professed uncertainty as to whether DynCorp would absorb the expenses of transporting the remains and, indeed, as to whether the remains could be shipped at all. See id. at ¶ 6. On August 2, the family again contacted DynCorp to request that Ross's remains be forwarded to Florida as soon as possible, at which time a DynCorp representative assured the plaintiffs that the remains would be transported the following day. See id. at ¶ 7. But the remains were not shipped as promised, and the distraught family repeatedly attempted to contact DynCorp on August 3 and 4 to determine when the remains would be moved to Florida. See id. at ¶¶ 8-10. It is undisputed that the Columbian government was closed on August 3 and 4 for the weekend and that this closure made arranging the transport on those days impossible. See id. at ¶¶ 26. By Monday, August 5, the plaintiff family members were "suffering from extreme mental anguish" as a result of DynCorp's twin failures to comply with their request regarding the transportation of the remains and to provide the family with information regarding the circumstances of Ross's death. See Pls.' Opp. at 22; Pls.' Opp., Ex. F (Ross Aff.), at ¶ 13; Pls.' Opp., Ex. G (Caceres Aff.), at ¶ 10.

On Tuesday, August 6, unable to bear any further delay, the Ross's family informed DynCorp that they no longer wanted Ross's remains sent to Florida, and requested that they instead be forwarded immediately to the family in Panama. See Pls.' Opp., Ex. F (Ross Aff.), at ¶ 14. Columbian government offices were again closed on Wednesday, August 7, for the presidential inauguration. See id. at ¶ 29. Ross's remains were delivered to his family in Panama on Thursday, August 8, 2002 — seven days after the day he died. See Def.'s Stmt., ¶ 23. Throughout the time-period during which DynCorp was attempting to arrange for transportation of Ross's remains, "DynCorp personnel were in regular contact with plaintiffs Michael Ross and Ann Ross via telephone and email." Id. ¶ 31. Additionally, the State Department conducted an investigation of Ross's accident and subsequently prepared an accident investigation report that was delivered to DynCorp in October, 2003. Id. ¶¶ 35-36.

The plaintiffs filed this suit against DynCorp on December 6, 2002. Their complaint contains the following counts arising out of Ross's injury and subsequent death: (1) Negligence, see Compl. at 9; (2) Negligence in the Conduct of an Ultrahazardous Activity, with the "ultrahazardous activity" being the so-called "hot refueling" procedure, see Compl. at 10; (3) Negligence Per Se, alleging that DynCorp violated its internal "regulations and policies and/or those of the U.S. State Department Operation Directives for Columbia, the U.S. Federal Aviation Authority, and/or industry standards" by allowing Ross to participate in the "hot refueling" procedure, see Compl. at 12; and (4) Negligent Supervision, see Compl. at 13. Concerning DynCorp's conduct in returning Ross's remains to his family and communicating with the family about the circumstances of Ross's death, the complaint charges both Intentional Infliction of Emotional Distress (Count VII), see Compl. at 17, and Negligent Infliction of Emotional Distress (Count VIII), see Compl. at 18.³

On January 27, 2003, DynCorp moved to dismiss the plaintiffs' complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state claims on which relief may be granted, arguing: (1) that the plaintiffs' negligence-based claims, in the aggregate, are barred by the exclusive remedy provisions of the federal Defense Base Act, which incorporates the federal Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 et seq.; and (2) that the plaintiffs have failed to allege sufficient facts to state claims for intentional or negligent infliction of emotional distress. By Order issued September 30, 2003, this Court denied the defendants' amended motion to dismiss without prejudice and authorized the parties to conduct ninety days of discovery, "limited to discovering facts necessary to determine whether this case may proceed in this Court." Order, issued Sept. 30, 2003, Docket No. 11. This Order anticipated the filing of a motion for summary judgment on the issue of whether the bulk of the plaintiffs' claims are barred by the Defense Base Act, and held in abeyance the Court's disposition of the defendants' arguments in favor of dismissal of the plaintiffs' emotional distress claims by denying them without prejudice.

Predictably, the defendants filed...