Southern District of Texas Addresses Exclusivity of the Defense Base Act

Section 1651(c) of the Defense Base Act (“DBA”) is the provision entitled, “Liability as exclusive.”  It states: “The liability of an employer, contractor…under this Act shall be exclusive and in place of all other liability of such employer, contractor, subcontractor, or subordinate contractor to his employees (and their dependents) coming within the purview of this Act, under the workmen’s compensation law of any State, Territory, or other jurisdiction, irrespective of the place where the contract of hire of any such employee may have been made or entered into.”  42 U.S.C. § 1651.

Recently, the Southern District of Texas had the opportunity to address the DBA’s exclusivity provision.  The decedent worked as a truck driver for Defendant contractor in Iraq.  Camp Anaconda was under constant threat of the hijack of convoy trucks, which were then used as explosive devices; therefore no unaccompanied convoys were permitted to attempt to enter the Camp.  Members of decedent’s convoy misinterpreted a radio command, which resulted in decedent’s convoy returning to the entrance of Camp Anaconda unaccompanied.  As a result of the standing order, decedent was shot by a United States military gunner.  The decedent’s daughter filed complaints for wrongful death, negligence, fraud and fraud in the inducement, and intentional infliction of emotional distress, among others, in the Southern District of Texas.  The court relied on the exclusivity provision of the DBA, as well as the recent decisions in Fisher and Jones to deny all of Plaintiff’s claims on grounds of preemption, except for her IIED claim.  See 42 U.S.C. §1651(c); Fisher v. Halliburton, 703 F.Supp. 2d 639, 643 (2010); Jones v. Halliburton Co., No. 4:07-cv-2179, 2011WL2066621 (S.D.Tex., May 24, 2011).  Intentional torts fall outside the scope of workers’ compensation schemes like the DBA.

Martin v. Halliburton, No. H-09-0328, 2011 WL 3925404 (S.D. Tex., Sept. 2, 2011).

Jon Robinson
As a Member at Mouledoux, Bland, Legrand & Brackett, Jon Robinson focuses his practice on the representation of employers and carriers in matters arising under the Longshore and Harbor Workers' Compensation Act, the Defense Base Act, and the War Hazards Compensation Act. He can be contacted at (504) 595-3000 or by e-mail at jrobinson@mblb.com.
Jon Robinson