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Judge allows trial of suits over KBR convoy deaths

By Tom Fowler – Houston Chronicle
Feb. 8, 2010

Lawsuits claiming Houston-based KBR should have stopped a 2004 truck convoy in Iraq before six civilian drivers were killed and others injured in an ambush can go to trial, a federal judge ruled today.

U.S. District Judge Gray Miller had previously dismissed the case, agreeing with KBR’s argument that it didn’t have the authority to keep the fuel convoys off the road and that a trial would be an improper challenge to military decision-making. KBR contracts with the military to provide logistical support.

But after an appeals court overturned his decision, Miller allowed the parties to gather more evidence, which turned up e-mails of KBR managers saying they thought they could stop the conveys and had done so in the past.

Miller said the added information was central to his decision that allowing the trial would not second-guess the military in violation of the political question doctrine — the legal principle that some issues are the province of the elected branches of government and not the federal courts.

“If anything, the record makes it clear that although the political question doctrine lurks just around the corner, it can be extricated from the plaintiffs’ claims against the defendants,” Davis wrote.

KBR said it will appeal the ruling.

The case centers on an April 2004 attack on a KBR convoy of supply trucks in Iraq, which killed six civilian truck drivers and wounded 14.

The drivers caught in the ambush were delivering fuel under KBR’s multibillion-dollar contract to transport supplies, build bases, serve meals and provide other support services for American troops in the Middle East.

Plaintiffs in the Houston suits — two injured workers and the family of one who was killed in the attack — allege that the company knew of the likelihood of the attacks in advance and had the authority to cancel the convoys.

Plaintiffs contend that e-mails and testimony allowed after the 5th U.S. Circuit Court of appeals sent the case back to Miller suggest KBR supervisors did not believe they were constrained by military orders.

“You, your team or any individual (as you have previously indicated to everyone in theater), have the right to say no to anything that is unsafe or where security is not available,” one KBR senior vice president said in an e-mail shortly before the deadly attacks.

In a statement KBR said it was disappointed with the ruling.

“KBR remains mindful of the tragic circumstances of this case,” the company said. “However, our position remains that the federal courts are not the appropriate forum for these issues to be resolved. KBR’s actions regarding the convoys were based on instruction by the Army and with reliance that the convoys would be protected by the Army. Further, it is not appropriate for federal courts to essentially second guess the military which is in the position daily of making decisions in the dangerous, unpredictable environment of a war zone.”

William Bodie, President of KBR’s North American Government and Defense business, said in a letter to the editor published by the Chronicle in November that the e-mails used in court “do not tell the whole story.”

“In context, the internal communication between KBR and the military evidence the concern KBR had for its employees,” Bodie said. “Further, the U.S. military alone decided to deploy the military supply convoys at issue here; they decided when, where and how the convoys were to be conducted.”

Tommy Fibich, an attorney for the plaintiffs, said the judge’s ruling directly refutes those claims.

“It’s clear the judge is saying these plaintiffs need to get their day in court and we look forward to it,” Fibich said. “The company can no longer hide behind these immunities they claim they have for this work.”

The case is set to go to trial on May 24. (Click HERE for article)

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