August 19, 2010, 3:29 PM EDT
By David Voreacos and Tony Capaccio
Updates in second paragraph with description of accident.)
Aug. 19 (Bloomberg) -- KBR Inc., the largest contractor in Iraq, must defend a wrongful-death lawsuit by the parents of a Green Beret who was electrocuted while showering in a building that the company maintained, a federal appeals court ruled.
KBR, based in Houston, asked the U.S. Third Circuit Court of Appeals to dismiss a case over the accidental death on Jan. 2, 2008, of Staff Sergeant Ryan Maseth. The Pentagon inspector general reported last year that KBR was partly to blame because the shower’s electrical pump wasn’t properly installed.
KBR’s appeal, after a judge declined to dismiss in March 2009, raises “interesting and important questions” about whether it invokes political issues that shouldn’t go before a judge, and whether KBR is immune from suit under a “combatant activities” exception, the court said.
“We do not reach these questions now, however, because they are not properly before us,” a panel of the Philadelphia- based court said Aug. 17. “We must dismiss this premature appeal for lack of jurisdiction.”
The panel sent the case back to U.S. District Judge Nora Fisher in Pittsburgh for more pretrial gathering of evidence. The appeal was premature because Fisher did not “conclusively determine” whether KBR could cite the political-question doctrine or combatant activities exception, the panel ruled.
A KBR spokeswoman, Heather Browne, said the company disagrees with the ruling. It was not responsible for Maseth’s death and will defend the case, she said.
Important Questions
“The court recognized that this case raises important questions of law, but ruled the appeal was premature,” Browne said in an e-mail. “The court found only that it lacked jurisdiction to hear the merits of KBR’s arguments at this time.”
Maseth, of Shaler, Pennsylvania, a member of the 5th Special Forces Group, was in his second tour of duty in Iraq. He died of cardiac arrest caused by electric shock, according to the complaint by his mother, Cheryl Harris, and his father, Douglas Maseth.
They allege that the electrical problems at the building where Maseth died were well-known, that KBR negligently failed to repair them, and that the negligence caused his death.
Maseth died in a shower at the Radwaniyah Palace Complex in Iraq in part because the pump wasn’t properly grounded when installed less than two years earlier, according to the inspector general’s report. The report examined the electrocution of 18 U.S. soldiers and contractors in Iraq.
‘Catastrophic Result’
The inspector general criticized the Army’s oversight of Maseth’s compound, saying his death “was the catastrophic result of the failure of multiple systems exposing U.S. personnel to unnecessary risk.”
KBR, Army commanders, and Army contracting command that provided oversight were “responsible for the use and physical condition” of the facility, it said.
Starting in February 2006, “KBR did not ground equipment during installation or report improperly grounded equipment identified during routine maintenance” at the facility, according to the report.
KBR installed the pump on the roof that contributed to the electrocution of Maseth, said the report.
“The pump that failed leading to the electrocution was not grounded during installation,” it said. “Safe and proper installation required grounding.”
In February, the Army’s Rock Island Contracting Center informed KBR it was being docked all potential fees of $24.1 million for January through April 2008.
‘Failures to Perform’
An Army contracting official, James Loehrl, told KBR in a letter the action followed “failures to perform at a level deserving” of a fee.
The deficiencies included “KBR’s failure to document the poor conditions of the electrical systems” at the complex, its “failure to provide notice of unsafe life, health and safety conditions and KBR’s failure to employ qualified personnel to provide electrical services.”
In a March 9 rebuttal, KBR Vice President Douglas Horn disputed Loehrl’s claims as “contrary to fact and conflict with findings previously made by multiple government entities.”
Horn disputed what he called the implication that KBR bore responsibility for the deaths of Maseth and others.
“There is no evidence this is true,” Horn said. “The Army knew that buildings” in the complex and elsewhere “had deficient electrical systems” and “the Army chose to house individuals in these buildings” or “not to authorize rewiring or other upgrade work.”
The company is “exploring options and remedies” for recovering the $24.1 million from the Army, Horn wrote in a response to the letter denying the fees.
The case is Harris v. Kellogg Brown & Root Services Inc., 08-cv-563, U.S. District Court, Western District of Pennsylvania (Pittsburgh).
--Editors: Charles Carter, Fred Strasser
To contact the reporters on this story: David Voreacos in Newark, New Jersey, at dvoreacos@bloomberg.net; Tony Capaccio in Washington at acapaccio@bloomberg.net.
To contact the editor responsible for this story: Mark Silva at msilva34@bloomberg.net
--submitted by Patti Woodard
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