The opinion of the court was delivered by: Judge Nora Barry Fischer
In this Memorandum Opinion, the Court addresses the narrow question of whether Iraqi law should be applied to certain of Plaintiffs Cheryl Harris and Douglas Maseth's ("Plaintiffs") claims in this case, as requested by Defendant Kellogg, Brown & Root Services, Inc. ("KBR"). KBR's motion for the application of Iraqi law has been fully briefed and the Court has entertained oral argument from counsel. (Docket Nos. 215, 216, 218, 221, 229, 231). The parties have also supplied the Court with evidence of the potentially applicable Iraqi law; KBR has presented an expert report and a supplemental expert report describing Iraqi law under the Iraqi Civil Code while Plaintiffs have submitted Coalition Provisional Authority 17, an Order which governed United States-Iraqi relations for a period starting in late 2003 until 2008. (Docket Nos. 216-1, 218, 221-1). Upon consideration of the parties' submissions and arguments, KBR's motion to apply Iraqi law is DENIED.
Plaintiffs Cheryl Harris and Doug Maseth are the parents of Staff Sergeant Ryan Maseth and administratrix and administrator, respectively, of his estate. (Docket No. 209). Both are domiciled in Pennsylvania. (Id. at ¶¶ 1-2). Staff Sergeant Maseth's estate is being administered in the state of Tennessee, where he had purchased a home shortly before commencing his second tour in Iraq. Defendant is a domiciliary of Texas, where its principal place of business is located, and Delaware, where it is incorporated. (Id. at ¶ 3). Plaintiffs allege that KBR's negligent conduct caused injuries to Staff Sergeant Maseth and his death in Iraq, resulting in damages. (Id. at ¶¶ 11-30). Plaintiffs also allege that KBR's negligent conduct caused them damages in Pennsylvania, including that:
b. They have been denied and have forever lost the services, assistance, guidance, counseling, companionship, and society of SSG Maseth;
c. They have been and will forever be deprived of the financial support and pecuniary benefits which they would have received from SSG Maseth; (Id. at ¶ 31).
At the time of his death, Staff Sergeant Maseth was serving his second tour in Iraq as an "active duty Army Ranger and Green Beret, serving in the 5th Special Forces Group (Airborne) of the United States Army." (Id. at ¶ 6). Staff Sergeant Maseth was housed at a building known as LSF-B1. (Id. at ¶ 11). KBR provided operations and maintenance services to the RPC and LSF-B1 pursuant to the LOGCAP III contract with the United States Army. (Id. at ¶¶ 8-10).
The parties do not dispute that, on January 2, 2008, Staff Sergeant Maseth was electrocuted while showering in his living quarters in building LSF-B1 at the RPC. Harris v. Kellogg, Brown & Root Services, Inc., 618 F.Supp.2d 400, 414 (W.D.Pa. 2009). Staff Sergeant Maseth's exposure to electric current caused him to suffer cardiac arrest, which resulted in his death. Id. The source of the electric current was determined to be a water pump located on the roof of LSF-B1. Id. at 414-15.
Plaintiffs allege that KBR's negligence in performing its operations and maintenance services, particularly, its negligent performance or non-performance of electrical maintenance services at LSF-B1, including same as to the malfunctioning water pump, was the proximate cause of Staff Sergeant Maseth's death. (Docket No. 209 at ¶¶ 11-30). Plaintiffs' claims sound in negligence and are brought under Pennsylvania's wrongful death and survival statutes. (Id. at
¶¶ 32-39). KBR argues that it is not liable to Staff Sergeant Maseth's estate and contends, among other things, that its responsibilities to perform electrical maintenance at the base were limited under the LOGCAP III contract and relevant Task Orders. (Docket No. 217).
In his expert report, Professor Haider Ala Hamoudi*fn1 from the University of Pittsburgh School of Law summarizes Iraqi law as set forth in its Civil Code. (Docket No. 216-1). Plaintiffs do not contest his summary of the law set forth in the relevant Iraqi Civil Code sections.*fn2 (See Docket No. 218). The Court now turns to his summation.
If applicable, Professor Hamoudi posits that Plaintiffs' common law tort claims would arise under the Iraqi Civil Code articles governing "wrongful actions." (Docket No. 216-1 at ¶¶ 17-19). Article 202 provides that "harmful acts to the person, including killing, wounding, assault or any other type of infliction of injury, may entitle the victim to compensation." (Id. at ¶ 19). "Article 203 indicates that in the case of killing, or in the case of death by reason of wounds or any other harmful act, the perpetrator may be responsible for compensating those who ‗have become impoverished and have been deprived of sustenance because of the killing or death.'" (Id.). "Article 204 is then the catch-all provision, indicating that ‗any transgression that results in the injury of another beyond that which was mentioned in the previous Articles is covered by compensation.'" (Id.). Three elements must be established to recover under Articles 202, 203 or 204: (1) fault, i.e., intentional conduct or negligence by the actor; (2) harm, including material harm, i.e., a realized loss of a financial interest by the victim and moral harm, i.e., harm to reputation or honor, emotional distress or pain and suffering damages; and (3) causation between the fault and the harm suffered. (Id. at ¶ 20).
Professor Hamoudi highlights the limitations of "causation" under the Iraqi Code. He quotes Article 211, as follows:
If a person determines that harm arises from a foreign cause which he had no hand in, like an act of heaven, an event of surprise, force majeure, the act of another, or the fault of the victim, then he is not liable if there is no agreement to the contrary concerning this. (Id. at ¶ 35). Under Iraqi law, joint and several liability may apply to harm caused by multiple actors, subject to exceptions. (Id.). As described by Professor Hamoudi, "one party is released from liability to the extent that the harm caused by the wrongful act of another, whether subsequent or precedent, ‗drowns out' the first party's wrongful act." (Id. at ¶ 36). Under the "drowning out" exception, an intentional act will "drown out" the negligent act and the negligent party will not be held responsible. Also, a negligent party will not be responsible if "one of the causes is the result of the other" or, stated differently, "where there are two negligent acts, one built upon and the product of another, the second negligent act is ‗drowned out' by the first, and is no longer considered a cause of harm." (Id. at ¶¶ 38-40).
Article 205(2)-(3) provides that:
(2) The wife and the family relatives have the right to compensation for the moral harm inflicted upon them by virtue of the death of the victim.
(3) Compensation for moral harm does not extend to anyone else except when the amount has been established by agreement or by judicial ruling. (Id. at ¶ 41). According to Professor Hamoudi, leading commentators agree that these sections "preclude the possibility of moral harm recovery on the part of a decedent victim as opposed to his family members." (Id. at ¶ 42). In addition, "compensation for material harm that has befallen a decedent victim, such as hospital or funeral expenses, is recoverable under Iraqi law, but compensation for moral harm such as pain and suffering or emotional distress on the part of the decedent (as opposed to his family members), is not." (Id. at ¶ 44). Under Iraqi law, the decedent's claim for moral harm remains inchoate at the time of his death and the right to recovery cannot be transferred to another person unless it is first determined by agreement or final judicial ruling. (Id. at ¶ 42). Among the reasons for this legal principle is that there are no estates under Iraqi law and the intestacy rules permit only a dividing of property amongst one's heirs at the time of his death. (Id.).
Professor Hamoudi also submits that there is no provision in the Iraqi Civil Code which authorizes an award of punitive damages. Instead, Article 207 of the Civil Code provides that:
(1) The court shall measure the compensation in all instances to the amount that represents the harm suffered by the victim and what he has lost in earnings, provided that this is a natural result of the wrongful act.
(2) Taken into account in the measurement is the prevention from the benefits of things and may include guarantees of wages.
Under Iraqi law, "the purpose of a civil trial cannot involve punishment or deterrence in any form." (Id. at ¶ 50). Thus, he opines, consistent with leading commentators on Iraqi law, that compensation available under the Iraqi Civil system is solely for harm suffered and punitive damages are unavailable. (Id. at ¶ 49). The reasons for this rule are that punishment for a wrong is "solely within the ambit of the Penal Code and the criminal courts responsible for interpreting and applying it," while the civil system is meant to compensate victims, only. (Id. at ¶ 56). This policy is furthered by a number of procedural rules which essentially stay a civil proceeding in the wake of a criminal case arising out of the same facts. (Id.). Moreover, if there is a finding of guilt, that finding remains binding in the civil courts. (Id.).
2. Coalition Provisional Authority Order Number 17
Following the American invasion of Iraq in March of 2003,
a Coalition Provisional Authority was placed in power to govern the country. On June 28, 2004, sovereignty was transferred to the Iraqi Interim Government, and on January 30, 2005, the same date elections were held to choose representatives for the newly formed Iraqi National Assembly, power was transferred to the Iraqi Transitional Government. On April 7, 2005, the Assembly chose Jalal Talabani as President of State. The Constitution of Iraq was ratified on October 15, 2005, and the permanent Iraqi government was installed on May 20, 2006. Yet throughout these incremental changes in power from Saddam's Ba‗athist regime to the current government, Iraq has maintained its status as a state, or nation. Its territorial integrity is intact, and those who were citizens of Iraq before the 2003 invasion are still citizens of Iraq. There has been no discontinuity of statehood.
Kalasho v. Republic of Iraq, 2007 WL 2683553, at *6 (E.D.Mich., Sept. 7, 2007).
Coalition Provisional Authority Order Number 17 ("Order 17") "was issued by Paul Bremer, the head of the Coalition Provisional Authority, during the early days of the U.S. occupation of Iraq." Galustian v. Peter, 591 F.3d 724, 728 (4th Cir. 2010). A revised Order 17 was later issued and the terms of Order 17 remained in place after the transfer of sovereignty to the Iraqis in 2004. Id. Pertinent here, section 4.2 of Order 17 provides that:
Contractors shall not be subject to Iraqi laws or regulations in matters relating to the terms and conditions of their Contracts, including licensing and registering employees, businesses and corporations; provided, however, Contractors shall comply with such applicable licensing and registration laws and regulations if engaging in business or transactions in Iraq other than Contracts. Notwithstanding any provisions in this Order, Private Security Companies and their employees operating in Iraq must comply with all CPA Orders, Regulations, Memoranda, and any implementing instructions or regulations governing the existence and activities of Private Security Companies in Iraq, including registration and licensing of weapons and firearms. (Docket No. 218-2 at § 4.2) (emphasis added). In addition, section 4.3 of Order 17 states:
Contractors shall be immune from Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a Contract or any sub-contract thereto. Nothing in this provision shall prohibit MNF Personnel from preventing acts of serious misconduct by Contractors, or otherwise temporarily detaining any Contractors who pose a risk of injury to themselves or others, pending expeditious turnover to the appropriate authorities of the Sending State. In all such circumstances, the appropriate senior representative of the Contractor's Sending State in Iraq shall be notified.
(Id. at § 4.3) (emphasis added). Finally, Section 18 provides that:
Except where immunity has been waived in accordance with Section 5 of this Order, third-party claims including those for property loss or damage and for personal injury, illness or death or in respect of any other matter arising from or attributed to acts or omissions of CPA, MNF and Foreign Liaison Mission Personnel, International Consultants, and Contractors or any persons employed by them for activities relating to performance of their Contracts, whether normally resident in Iraq or not and that do not arise in connection with military operations, shall be submitted and dealt with by the Sending State whose personnel (including the Contractors engaged by that State), property, activities or other assets are alleged to have caused the claimed damage, in a manner consistent with the Sending State's laws, regulations and procedures. (Docket No. 218-2 at § 18) (emphases added).
The United Nations Security Counsel Resolution 1790, which gives legal effect to Order 17 immunity, expired on December 31, 2008. Effective January 1, 2009, the Status of Forces Agreement ("SOFA") now provides that "Iraq shall have the primary right to exercise jurisdiction over United States contractors and United States contractor employees."
Galustian v. Peter, 2010 WL 4608710, at *8, n.17 (E.D.Va. Nov. 9, 2010) (quoting ...