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Government Contractor Defense Did Not Bar Truck Drivers' Claims

Summary judgment on tort claims brought against a defense contractor was denied by the District Court for the Southern District of Texas because the government contractor defense did not bar the claims. The matter involved a contract issued under the Logistics Civil Augmentation Program, which authorized the military to employ civilian contractors to perform selected services during wartime. The plaintiffs in several consolidated cases were fuel truck drivers or their surviving spouses and dependents who alleged fraud, assault and battery, and negligence. According to the plaintiffs, the contractor authorized convoys even though it was aware the trucks would be subject to a high risk of attack. The contractor moved for partial summary judgment based on the government contractor defense, which allows federal law to displace state tort law in narrow, specific circumstances in suits against independent contractors (see Boyle v. United Technologies Corp., 34 CCF 75,489). Under the defense, if the government would be immune from suit, that immunity may be passed through to contractors performing the government's tasks. Thus, where a contractor acts within the authority of its contract with the government, it cannot be found liable.

Exceeded Authority

Here, some of the plaintiffs' claims were based on intentional torts, but it is axiomatic that one may not contract to commit a tort. Therefore, the claims necessarily exceeded the authority granted in the LOGCAP contract. Similarly, the negligence claims did not allege the contractor was liable because of a Congressional policy allowing the armed forces to use civilian contractors in a war zone. Instead, the plaintiffs claimed the contractor, as the employer with sole authority over its employees, had a duty of care to the workers that it violated when it sent the drivers into an area the contractor knew to be actively under fire by insurgents. Also, the contract terms clearly contemplated situations so dangerous that contractor personnel could refuse to perform. The contractor argued that because the contract was "rated," it would have been criminally liable if it refused to perform. A rated contract is one governed by a system of priorities implemented pursuant to the Defense Production Act of 1950. However, the LOGCAP contract lacked an essential element of a rated contract --a delivery date. Moreover, the contract was a cost-plus-award-fee contract that contemplated less than perfect performance as evidenced by the bonus award system. Thus, based on the contract terms, the contractor could comply with both its "contractual obligations and the state-prescribed duty of care." (Fisher, et al. v. Halliburton, DC SD Tex, 54 CCF 79,253)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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