The United States Court of Appeals, Fifth Circuit, issued an important opinion addressing the exclusive nature of the Defense Base Act (“DBA”) and whether an employer can be held liable under an intentional tort theory for injuries sustained by contractors.
The plaintiffs in Fisher v. Halliburton filed suit against the employer that employed their deceased family members as truck drivers in Iraq. On April 9, 2004, two convoys were savagely attacked by insurgents with improvised explosive devices, rocket-propelled grenades and machine gun fire. Seven drivers were killed and ten were injured. The plaintiffs filed suit alleging negligence and fraud, and after an earlier decision by the Fifth Circuit, the plaintiffs refined their complaint to also include civil conspiracy, intentional infliction of emotional distress and intent to injure/assault.
On the present appeal, the Fifth Circuit determined that it needed to resolve three issues: (1) whether the injuries were injuries “caused by the willful act of a third person directed against [the employees] because of their employment;” (2) whether the plaintiffs could proceed with their intentional tort claims against the employer under the theory that the employer “knew the insurgent attacks were substantially certain to occur and failed to protect [the employees] from attack;” and (3) whether “coverage of [the employee’s] injuries under the DBA preclude[d] [the employee’s] from pursuing their fraud claims….”
An “injury” under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) includes “an injury caused by the willful act of a third person directed against an employee because of his employment.” The DBA, which is a general reference statute extending LHWCA coverage to qualifying employees of defense contractors, incorporates this definition of “injury.” For the Fisher court, that required analyzing whether the third person’s willful action (i.e. the terrorist or insurgent attack) was levied against the employees because of their employment. The Fifth Circuit had no trouble concluding that the insurgents attacked the employees because of their employment. At the time of the attack, the employees were fulfilling their job duties. In the court’s opinion, Fisher was the “quintessential case of a compensable injury arising from a third party’s assault.” The employees were injured or killed because of their employment driving trucks in Iraq.
But could the plaintiffs proceed with their intentional tort claims? The Fifth Circuit said, “No.” It is well-known that intentional torts fall outside the scope of coverage of workers’ compensation laws. Here, the plaintiffs asserted that the employer should be held liable under the intentional tort theory that “the employer knew that the third party’s assault was substantially certain to occur and failed to protect him from the assault.” This theory failed on appeal, with the Fifth Circuit noting that there was no exception for the intentional tort exclusion even if the employer was somehow “substantially certain” that the employee would be assaulted by third persons. There are just too many questions to permit this type of “probabilistic standard” to upset the purpose of the DBA.
The court also considered whether the DBA was the exclusive remedy for the employees’ injuries and death, or whether the plaintiffs could proceed with their fraud claims. They could not. The Fisher plaintiffs were seeking damages for work-related injuries, but the appropriate statutory scheme for recovery was the DBA, not tort law.
The Fisher court makes it plainly obvious that the DBA is the exclusive remedy for injured contractors falling within the scope of the DBA. Statutory support for this proposition can be found at 42 U.S.C. Sec. 1651(c)(1), which states, “[t]he liability of an employer…under this chapter shall be exclusive and in place of all other liability of such employer….” Considering the unambiguous statutory language and Fisher‘s strong reasoning, exclusivity should be regarded as a firmly entrenched reality of DBA coverage.
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)