The opinion of the court was delivered by: Judge Nora Barry Fischer
Plaintiffs, the parents and administrators of the Estate of Staff Sergeant Ryan Maseth, seek damages against government contractor Kellogg, Brown and Root Services, Inc. ("KBR"), claiming that KBR's alleged negligence in the performance or non-performance of electrical services at a military base during the Iraq War was the proximate cause of his electrocution and death while showering at the Radwaniyah Palace Complex ("RPC"). (Docket No. 209). The crux of Plaintiffs' case is that KBR failed to employ certain safety procedures in conjunction with electrical maintenance services it provided at the RPC. (Id.). The use of grounding and bonding techniques as suggested by Plaintiffs is standard practice by electricians in the United States and other Western countries. (Id.). According to Plaintiffs, the use of these safety precautions may have prevented their son's death, which they maintain resulted from the failure of a water pump installed without it being grounded or bonded. (Id.). KBR does not challenge the merits of Plaintiffs' claims at this time. Instead, KBR has filed a renewed motion to dismiss, arguing that this case is barred by the political question doctrine under Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691 (1962), and, alternatively, that Plaintiffs' claims are preempted by the combatant activities exception to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2680(j). (Docket No. 260).
This Court previously denied a motion to dismiss brought by KBR raising these same defenses, holding that, as pled, Plaintiffs' claims did not raise non-justiciable political questions and were not preempted by the combatant activities exception. See Harris v. Kellogg, Brown & Root Services, Inc., 618 F. Supp. 2d 400 (W.D. Pa. 2009). The United States Court of Appeals for the Third Circuit dismissed KBR's appeal of this decision without addressing the merits and the case was remanded to this Court. Harris v. Kellogg, Brown & Root Services, Inc., 618 F.3d 398 (3d Cir. 2010). Upon remand, the parties were ordered to conduct discovery regarding Plaintiffs' claims and KBR's defenses, which they did. Extensive discovery has been undertaken by the parties. KBR's renewed motion to dismiss has been fully briefed and argued by the parties. (See Docket Nos. 260-279, 282-285, 294).
The Court has carefully considered all of the parties' arguments and the detailed factual record in this case. (See id.). After conducting a "discriminating inquiry into the precise facts" of this case as established through a lengthy period of discovery and having heard the parties' arguments outlining the claims and defenses that they intend to present at trial, the Court finds that further adjudication of this dispute will inextricably lead to consideration of sensitive military judgments for which no judicially manageable standards exist. Baker, 369 U.S. at 217. Specifically, further adjudication of this case will require evaluation of the military's decision to continue to house soldiers in hardstand buildings with hazardous electrical systems even though the military was aware that the buildings lacked grounding and bonding and the military possessed specific knowledge that such electrical deficiencies had resulted in electrocutions to military personnel, causing injuries and even deaths, prior to the events of this case.
The Court finds that the issues which Plaintiffs seek to try -- whether KBR was negligent in failing to install grounding and bonding features on the malfunctioning water pump, failing to install grounding and bonding features on the electrical system, or failing to properly bond the pipes at Legion Security Forces Building 1 ("LSFB1") -- cannot be answered without first considering the wisdom of military judgments, thus taking this case beyond judicial review. In this Court's view, KBR has also presented sufficient evidence from which it may legitimately argue that the military exposed soldiers to what its commanders determined to be an acceptable level of risk after considering all of the other hazards of war which were faced by soldiers in the Iraq war theatre and its ability to fund the electrical upgrades and safety features which are admittedly standard here in the United States. (See Def Ex. 2, Docket No. 263-2:11; Def Ex. 6, Docket No. 263-15; Def Ex. 7, Docket No. 263-16; Def Ex. 22, Docket No. 263-33; Def Ex. 24, Docket No. 263-35). This evidence supports its position that despite the known risk presented by electrical deficiencies at the RPC, the military did not contractually require KBR or prior contractors to complete upgrades to the electrical facilities there. (Def Ex. 26, Docket No. 263-37:48; Def Ex. 43, Docket No. 263-69; Pl Ex. A, Docket No. 266). The military also declined KBR's offer to upgrade the electrical facilities for cost reasons. (Docket Nos. 262 at ¶ 135; 265 at § I, ¶ 135).
The level of safety provided to soldiers at a military base is a decision which is constitutionally committed to members of the Executive Branch while the funding of the military is constitutionally committed to the Legislative Branch. See Lane v. Halliburton, 529 F.3d 563, 559 (5th Cir. 2008) ("[T]he Constitution commits to Congress the power to raise and support an army and navy, and to the Executive the responsibilities of commanding those armed forces.").In this Court's estimation, following the Supreme Court's dictates in Baker, the judgments of these officials on such sensitive military and legislative policy issues cannot be evaluated in a court of law without violating the doctrine of separation of powers.
For these reasons, and as is further detailed below, the Court now concludes that this case is barred by the political question doctrine and preempted by the combatant activities exception to the FTCA and must be dismissed.
The factual record in this case is extensive. As much of the evidence was previously considered by the Court in the decision denying KBR's initial motion to dismiss, see Harris, 618 F. Supp. 2d at 403-15, the Court recounts here only those facts necessary to resolve the pending motion.
KBR's provision of operations and maintenance services to the United States Army during the Iraq War pursuant to the Logistics Civil Augmentation Program ("LOGCAP") is central to this case. (Docket Nos. 262 at ¶¶ 1-10; 265 at § I, ¶¶ 1-10). As noted, the relevant events occurred at the RPC. (Docket Nos. 262 at ¶¶ 28-30; 265 at § I, ¶¶ 28-30). The RPC was the headquarters for Special Operations Forces operating in Iraq. (Docket Nos. 262 at ¶ 29; 265 at § I, ¶ 29). The military had overall responsibility for, and authority and control of, the activities and operations that took place at the RPC, including the decisions as to which buildings were used as housing. (Def. Ex. 7, Docket No. 263-16, Satterfield Depo at 102 ("Commanders authorize soldiers, and when I say commanders I'm talking now all services, told the troops where they were allowed to live or not live."); Docket Nos. 262 at ¶¶ 51-52; 265 at § I, ¶¶ 51-52).
The RPC consists of approximately 144 separate buildings. (Docket Nos. 262 at ¶ 125; 265 at § I, ¶ 125). Due to its size, the RPC was divided into compounds or areas. (Docket Nos. 262 at ¶ 46; 265 at § I, ¶ 46). One such area was known as the Legion Security Forces Compound ("LSF"). Id. Staff Sergeant Maseth was housed in one of the buildings within the LSF, known as LSFB1. Id. Other inhabitants of the LSF buildings were Special Forces troops who conducted midnight raids on enemy forces or provided security at the heavily-guarded entry control point which was located near LSFB1. (Docket Nos. 262 at ¶¶ 35-39, 47; 265 at § I, ¶¶ 35-39, 47). The soldiers housed in the LSF buildings also provided intelligence for the war effort in Iraq. (Docket Nos. 262 at ¶ 38; 265 at § I, ¶ 38).
The RPC buildings were initially constructed by Iraqis prior to the U.S. led invasion of Iraq. (Docket Nos. 262 at ¶ 45; 265 at § I, ¶ 45). The military referred to these buildings as "hardstands." (Id.). Some of the buildings had internal restroom and shower facilities which were likewise constructed by Iraqis. (See Docket Nos. 262 at ¶¶ 70, 172, 178, 187; 265 at § I, ¶¶ 70, 172, 178, 187). Soldiers living in these buildings often showered in these facilities. (Id.). LSFB1 had two such internal restroom facilities which were used by the inhabitants. (See Def Ex. 31, Docket No. 263-54 at 14, Figure 2, Floor Plan of LSFB1). However, there were containerized showering facilities known as ablution units, which were made available to soldiers at the RPC. (Docket Nos. 262 at ¶ 49; 265 at ¶ 49). Military commanders were responsible for directing soldiers to use ablution units, if they deemed it appropriate. (Def. Ex. 7, Docket No. 263-16, Satterfield Depo at 102-104). As a contractor, KBR had no authority to order military personnel to do anything, including to direct soldiers where to live or shower. (Docket Nos. 262 at ¶¶ 54-55; 265 at § I, ¶¶ 54-55).
B.Renovations to LSF Buildings by Iraqi Subcontractor
Shortly after the occupation, in 2003, the Army made a decision to renovate and refurbish the hardstand LSF buildings, including LSFB1. (Docket Nos. 262 at ¶ 99; 265 at § I, ¶ 99). Prior to the renovations, LSFB1 was completely looted and it had no electrical power, electrical components, internal plumbing, doors or windows. (Docket Nos. 262 at ¶ 100; 265 at § I, ¶ 100). Lieutenant Colonel Richard Cote was the project manager for the renovation project and he was directed to engage a local Iraqi contractor, rather than an American contractor, to perform the renovations. (Docket Nos. 262 at ¶ 101; 265 at § I, ¶ 101). Local contractors were used in order to improve U.S. -- Iraqi relations and to support the local economy which had been devastated by the war. (Docket Nos. 262 at ¶¶ 103-04; 265 at § I, ¶¶ 103-04). The original intent of the project was for LSFB1 to be used as office space and a command post rather than living quarters. (Docket Nos. 262 at ¶¶ 105-06; 265 at § I, ¶¶ 105-06). Hence, making the building safe for living quarters was not considered a priority during the renovations. (Id.).
The contractual agreement with the Iraqi contractor provided that it was to rewire the building using supplies and materials from the local economy and to include grounding and bonding for all electrical work. (Docket Nos. 262 at ¶¶ 107-09; 265 at § I, ¶¶ 107-09). The contract further directed that acceptance of the contractor's work would be conditioned on a successfully completed test of the grounding system. (Docket Nos. 262 at ¶ 110; 265 at § I, ¶ 110). However, no such test was ever completed, (id.), even though it was well known within the military chain of command that Iraqi contractors did not ground and bond their electrical work. (Docket Nos. 262 at ¶¶ 102, 113; 265 at § I, ¶¶ 102, 113). In fact, military personnel testified that the work was "bad news" and "jerry-rigged." (Docket Nos. 262 at ¶ 113; 265 at § I, ¶ 113). Thus, the work performed at LSFB1 was no exception.
Subsequent to the renovations, it was generally accepted that the buildings in the RPC did not meet Western construction standards and that there were deficiencies in the electrical systems, including a lack of proper grounding and bonding. See Harris, 618 F.Supp.2d at 405. Despite the known presence of deficient electrical systems, the military made a decision to house soldiers in these buildings as they were considered safer than manufactured housing, given the risk of mortar attacks and shelling. Id.; (see also Docket Nos. 262 at ¶ 91; 265 at § I, ¶ 91 ("As General Vines acknowledged: 'We chose to assign personnel to live in these pre-existing structures, notwithstanding their electrical deficiencies. All of us, including myself, lived in buildings with similar deficiencies.'")). Indeed, despite the initial mandate that LSFB1 would not be used to house soldiers, the building was continuously occupied by soldiers from its acceptance by the military in May of 2004 through 2008. (Docket Nos. 262 at ¶¶ 112, 114; 265 at § I, ¶¶ 112, 114). The evidence also shows that the military never remedied the faulty electrical work in LSFB1 completed by the Iraqi subcontractor nor did it engage another contractor to fix the problems. (Docket Nos. 262 at ¶¶ 117, 188, 190; 265 at § I, ¶¶ 117, 188, 190).
C.CENTCOM Contracts with Washington Group and KBR
The United States Army Corps of Engineers ("USACE") engaged Washington Group International*fn1 ("WGI") to provide operations and maintenance services at the RPC from April 2003 through April 2006 under a series of contractual agreements. (Docket Nos. 262 at ¶ 117; 265 at ¶ 117). These contracts provided that the buildings be maintained "as is" and noted that "[e]xisting interior and exterior electrical systems are in poor condition. The Contractor shall support existing electrical systems." (Id. (emphasis added)). During its term as service provider at the base, WGI never upgraded the deficient electrical work which was completed by the Iraqi subcontractor. (Docket Nos. 262 at ¶¶ 188, 190; 265 at § I, ¶¶ 188, 190).
The USACE next contracted with KBR to provide operations and maintenance services at the RPC under the CENTCOM contract for the period of April 2006 through February 2007. (Docket Nos. 265 at § II, ¶ 1; 283 at ¶ 1). Like the contracts with WGI, this agreement with KBR also provides that "[e]xisting interior and exterior electrical systems are in poor condition. The Contractor shall support existing electrical systems." (Docket Nos. 262 at ¶ 118; 265 at § I, ¶ 118 (emphasis added)). Services were provided under the USACE contract as directed by the military in order to "restore a facility or component thereof, to a condition substantially equivalent to its original intended and designed capacity . or is restored to its 'as built' condition." (Docket Nos. 262 at ¶ 119; 265 at § I, ¶ 119).
The parties dispute which provisions of the CENTCOM contract were applicable to the present circumstances. KBR contends that § 34, Requirements for Electrical, which contained no explicit standard for electrical work, applied while Plaintiffs take the position that § 44, Requirements for Low Voltage Electric System Maintenance and Repair, which specified that the National Electrical Code ("NEC") standards govern KBR's work, applied. (Docket No. 262 at ¶¶ 118, 119; 265 at § I, ¶¶ 118, 119). The parties have not presented any evidence outside of this contract to support their positions with respect to which provision of the CENTCOM contract controlled KBR's relationship with the Army Corps of Engineers, i.e., if § 34 rather than § 44 applied.*fn2 (See Docket No. 294 at 94, 106).
D.Warnings Concerning the Risks to Soldiers of Potential Electrical Hazards at Military Bases in Iraq
During the period of 2004-2006, there were several reports of injuries and deaths of United States soldiers after sustaining electrical shocks in the Iraq war theatre. (See Def. Exs. 2, pts 2-10, 22, 24, Docket Nos. 262-2:262-11, 262-33, 262-35). Many of these shocks were attributed to improper grounding of electrical systems. (Id.). As is detailed below, this information pertaining to the specific risk of electrical shocks to soldiers was then publicized within the military, including distribution to many high-ranking officials in the chain of command. These warnings emanated from the Army Safety Center, the Defense Contract Management Agency ("DCMA") and other military personnel.
To this end, the United States Army Safety Center publishes a monthly magazine, "Countermeasures," which focuses on Army ground risk-management advice.*fn3 (Def. Ex. 22, Docket No. 263-33 at 2). An article titled "Electrocution: The Unexpected Killer" appeared in the October 2004 issue of this publication. (Id. at 20). This article states that five soldiers had died in Iraq in fiscal year 2004 from electrocutions, including one soldier who was killed while showering in May or June of 2004. (Id.). The author cited "improper grounding of electrical systems" as the cause of that electrocution, and a senior military engineer confirmed that the military had seen "several shocks in showers and near misses here in Baghdad, as well as in other parts of the country." (Docket Nos. 262 at ¶ 64; 265 at § I, ¶ 64). Although this is an Army publication and is directed to troop safety, it is unclear from the record how widespread was this publication's reach.
Later, in 2006, Lieutenant Colonel Brent Carey, a LOGCAP support officer who reported directly to Jana Weston within the DCMA, observed electrical hazards at hardstand buildings on the bases within Iraq where soldiers were housed and prepared a presentation describing same. (Def Ex. 2, pts 2-10, Docket No. 263). The purpose of LTC Carey's presentation titled "Sub-Standard Electric Wiring Conditions" was to bring attention to a "serious threat to the life, health and safety of our soldiers." (Docket Nos. 262 at ¶ 69; 265 at § I, ¶ 69). His briefing provided a warning that soldiers could be electrocuted in the shower and pointed out that a soldier had died in a shower in a hardstand building in the summer of 2005. (Docket Nos. 262 at ¶ 70; 265 at § I, ¶ 70). LTC Carey intended his presentation "to make a case for having soldiers leave the hardstand buildings or releasing the funding so that KBR or another contractor could fix the wiring." (Docket Nos. 262 at ¶ 71; 265 at § I, ¶ 71). LTC Carey testified that he discussed his concerns with various individuals throughout the military chain of command. (Docket Nos. 262 at ¶ 72; 265 at § I, ¶ 72).
Major James Harvey also served in the LOGCAP support unit and received LTC Carey's presentation. (Docket Nos. 262 at ¶ 73). In 2006, Major Harvey forwarded the briefing up the chain of command to a number of other high-ranking individuals, including "Brigadier General Satterfield, Colonel Jack O'Connor, General Kathleen Gainey, General Joseph Anderson, Major John Stewart, Colonel Jacque Azmar, possibly Colonel Jake Hanson, Colonel Thad Hartman, Jana Weston, Headquarters of Army Sustainment Command in Rock Island, someone within Fort Belvoir, Don Anderson, the LOGCAP office, Colonel Christianson, Colonel Smith, and Congressman Wayne Gilchrest."*fn4 (Docket Nos. 262 at ¶ 74; 265 at § I, ¶ 74). Major Harvey testified that he submitted this information to these individuals (and possibly others) because they had the authority and ability to take action and make changes regarding the electrical deficiencies. (Docket Nos. 262 at ¶¶ 73-76; 265 at § I, ¶¶ 73-76).
Subsequently, Major Harvey identified the electrical hazards as critical issues in situational weekly reports that he prepared for an additional four to six weeks. (Docket Nos. 262 at ¶ 78; 265 at § I, ¶ 78). These reports were also provided to military commanders. (Id.). In addition to the briefings, LTC Carey gave photographs of widespread electrical hazards to base camp Mayors at meetings which were held for the purpose of identifying additional services needed at the base camps. Neither Harvey nor Carey received any significant response to their concerns. (Docket Nos. 262 at ¶¶ 82-83; 265 at § I, ¶¶ 82-83). Indeed, LTC Carey testified that the base camp Mayors who received his report seemed "annoyed" by it. (Docket Nos. 262 at ¶ 84; 265 at § I, ¶ 84).
Brigadier General Douglas Satterfield was one of the senior commanding officers who received LTC Carey's briefing on potential electrical hazards at the bases. (Docket Nos. 262 at ¶ 85; 265 at § I, ¶ 85). General Satterfield testified that it was well known throughout the military that the electrical systems presented hazards. (Docket Nos. 262 at ¶¶ 86-87; 265 at § I, ¶¶ 86-87). He also explained that he was likewise housed in one of the hardstand buildings and was exposed to these risks. (Docket Nos. 262 at ¶¶ 88-89; 265 at § I, ¶¶ 88-89). He further confirmed that shocking incidents of soldiers occurred regularly and admitted that he was shocked "many times." (Docket Nos. 262 at ¶ 89; 265 at § I, ¶ 89). However, General Satterfield considered the shocking incidents to be "minor" as compared to other more pressing military issues such as power generation and the protection of base residents from indirect enemy fire. (Docket Nos. 262 at ¶ 90; 265 at § I, ¶ 90). Lieutenant General John Vines, former Commander of the Multi-National Force -- Iraq, declared that the military chose to house soldiers in the hardstand buildings despite the known electrical risks and that all of the soldiers who were housed there -- including him -- were exposed to such risks. (Def Ex. 6, Docket No. 263-15, Docket Nos. 262 at ¶ 91; 265 at § I, ¶ 91). General Vines further opined that the tragic incident involving Staff Sergeant Maseth could have occurred at any of the bases in Iraq where existing hardstand structures were used to house soldiers, because they all suffered from the same electrical deficiencies and subjected soldiers to similar risks. (Id.).
Additional internal military documents demonstrate further awareness of the electrical problems at U.S. bases in Iraq. For example, on February 1, 2007, Paul W. Dickinson of the DCMA issued a Memorandum for the Commander of DCMA Iraq, in conjunction with an audit he was conducting for the purpose of establishing contractual standards for a future contract with KBR under LOGCAP IV.*fn5 (Def Ex. 24, Docket No. 263-35; Docket Nos. 262 at ¶ 92; 265 at § I, ¶ 92). The purpose of the Memorandum was "[t]o set a baseline on the safety status and culture, state the way forward to improve status, and develop the measures and timeline to ensure the process is properly aligned to achieve the mission goals." (Def Ex. 24, Docket No. 263-35; Docket Nos. 262 at ¶ 93; 265 at § I, ¶ 93). Dickinson wrote that:
KBR has a large professional safety staff and institutionalized safety program. However, the program is based upon US OSHA Safety Standards as required by contract, and is substantially non-achievable due to the war environment. Many products and facilities available in Iraq do not meet basic US standards nor a military risk analysis based on a generally acceptable "good enough" standard. The LOGCAP contract process influences KBR to inherit many facilities which are not intended for long term usage. (Def Ex. 24, Docket No. 263-35; Docket Nos. 262 at ¶ 94; 265 at § I, ¶ 94). Dickinson also noted that the "[p]rimary safety threat, theater wide, is fire due to the inferior 220 electrical fixtures found throughout Iraq. Improper installation, substandard equipment purchases (such as light fixtures), and heavy usage appear to be the three primary causes of these fires." (Def Ex. 24, Docket No. 263-35; Docket Nos. 262 at ¶ 95; 265 at § I, ¶ 95).
E.Transition from CENTCOM Contract to LOGCAP -- Technical Inspections In February of 2007, the military desired to shift KBR's limited maintenance responsibilities under the CENTCOM contract to the LOGCAP program. (Docket Nos. 262 at ¶¶ 127, 128; 265 at § I, ¶¶ 127, 128). There were several reasons identified for the transition, including an effort to reduce the overall cost of maintaining the RPC and the fact that the CENTCOM contract was near expiration. (Docket Nos. 262 at ¶ 227; 265 at § I, ¶ 227). Negotiations ensued between the parties regarding the details of the transition, including the timing of same and the scope of the services KBR was to provide under the LOGCAP program.
The transition from CENTCOM to LOGCAP was accomplished in a few short weeks as documents provided to the Court show that the formal request for a project planning estimate was made by the military on February 8, 2007 and KBR responded to same on February 19, 2007, with subsequent revisions submitted on February 20 and 23, 2007. (Def. Ex. 3, Docket No. 263-12 at 26-48). One of the initial requirements that the military imposed on KBR prior to the transition was the completion of technical inspections of the RPC buildings. (Docket Nos. 262 at ¶ 129; 265 at § I, ¶ 129). The documents suggest that KBR was expected to accomplish the inspections within the short time frame allotted by the military. (Docket Nos. 262 at ¶ 130; 265 at § I, ¶ 130). For practical purposes, the completion of full technical inspections of all of the 126 buildings was not possible during the two-week time frame. In this regard, the military officer in charge of the transition, LTC Donna Williams, testified that the time frame permitted to complete the technical inspections was "unrealistic" given the number of buildings at the RPC. (Id.). KBR made a request for additional time to complete the inspections but military commanders rebuffed this request, and LTC Williams testified that she believed that the transition was "rushed." (Docket Nos. 262 at ¶¶ 130, 132; 265 at § I, ¶¶ 130, 132). She also felt that the transition was expedited because of exigent battlefield needs of the military and in order to avoid a break in KBR's services. (Docket Nos. 262 at ¶¶ 129, 131; 265 at § I, ¶¶ 129).
The hurried nature of the transition is also demonstrated by KBR's project planning estimate, wherein KBR states that:
14. The short suspense for the PPE does not allow for a complete TI [technical inspection] of each building. KBR assumes the buildings are up to the quality standards of LOGCAP and has based the estimate on assuming O&M [operations and maintenance services] on buildings and peripheral equipment that are in acceptable condition.
16. KBR assumes the building systems to be in good condition and upon discovery of defective systems (Electrical, Mechanical, or Structural) repairs will be made only at the direction of an ACL [administrative change letter]. KBR has included the cost of known repairs required at the time of the estimate.
(Project Planning Estimate "PPE", attached to Def Ex. 3, Weston Depo, Docket No. 263-12 at 30-31 (emphasis added)). Despite this language, KBR did complete a "limited" technical inspection of some of the RPC buildings and prepared a February 10, 2007 technical inspection report which identified several electrical deficiencies at "Radwaniyah Palace D9" and "LSF Office." (Pl. Ex. W, Docket No. 277 at 2-3). The problems identified in the report included, inter alia: a lack of grounding of a main distribution panel; incorrectly sized and not properly grounded wires on secondary feeder wire circuits; and, an improperly grounded water heater tank. Id. at 2. As set forth on the report, despite the noted deficiencies, the main distribution panel for the "Radwaniyah Palace D9" was identified by KBR with an equipment condition code ("CC") of "B5 Serviceable - used, fair (w/ qualifications)." Id. Other options on the form included "Unserviceable" - a code which testimony demonstrates if selected may have resulted in condemnation of a building. Id. at 3. This technical inspection was provided to the military a second time in November of 2007, after military personnel requested KBR to provide it with another copy of the report. (Docket Nos. 262 at ¶¶ 169-170; 265 at § I, ¶¶ 169-170).
During the initial negotiations, KBR proposed that it be engaged to provide Level A maintenance at the RPC under Task Order 139.*fn6 (Docket Nos. 262 at ¶ 134; 265 at § I, ¶ 134). Level A maintenance included upgrades to existing facilities and the establishment of a preventative maintenance program, including checks for grounding of electrical systems. (Docket Nos. 262 at ¶¶ 136, 137; 265 at § I, ¶¶ 136, 137). Level B constituted a lower level of maintenance services and expressly excluded upgrades to existing systems and preventative maintenance. (Docket Nos. 262 at ¶¶ 138-139; 265 at § I, ¶¶ 138-139). After some discussions, the Army determined that the cost associated with Level A maintenance was prohibitive and requested an estimate as to Level B maintenance, only. (Docket Nos. 262 at ¶ 135; 265 at § I, ¶ 135). In its project planning estimate, KBR relied on a series of assumptions which are consistent with the Level of maintenance to be provided, including that:
27. KBR assumes FACILITY MAINTENANCE will be level
B. Limited maintenance does not include inspections, preventative maintenance and upgrades. Any repairs that need to be done on the facility will be initiated with a service request by the customer. Upon receipt of service request, the contractor shall conduct an assessment to determine feasibility of repair or replacement of existing items. The assessment shall be provided by the Mayoral Cell. If the assessment determines repair or replacement is warranted, the contractor shall repair or replace. However, if the assessment exceeds the scope of repair or replacement; the contractor shall return the service request to the Mayoral Cell for disposition. Repairs on emergency items (i.e. No power or no AC in the summer) will be initiated within two hours of the request. Normal repairs initiated within 24 hours of the request. (PPE, Def Ex. 3, Docket No. 263-12 at 31). On February 23, 2007, the military approved funding for KBR's project planning estimate and issued an administrative change letter authorizing KBR to commence work under the LOGCAP III program in exchange for compensation in excess of three million dollars. (2/23/07 ACO Change Letter, attached to Def Ex. 3, Docket No. 263-12 at 26-27).
Prior to January 2, 2008, the military never directed KBR to repair the electrical deficiencies identified in the technical inspection for LSFB1 or to issue an administrative change letter authorizing KBR to upgrade or rewire LSFB1. (Docket No. 262 at ¶ 166). In addition, after its initial offer to complete Level A maintenance was rejected by the military, KBR never requested that it be permitted to upgrade the electrical facilities of LSFB1 and never explicitly sought the military's approval to upgrade or rewire the buildings. (Docket No. 265 at § I, ¶ 161). Nor did the military ask KBR to do so.
F.LOGCAP Contract/Statement of Work/Task Order 139
The Court previously detailed the relevant terms and conditions of the LOGCAP III Contract between KBR and the military, which consists of the LOGCAP base contract, Statement of Work and Task Order 139. *fn7 (See Task Order 139, Def. Ex. 43, Docket No. 263-69; Pl. Ex. B, Docket No. 266-1). Thus, the Court focuses its analysis on the provisions which are necessary to the disposition of the present motion, rather than recounting the terms and conditions of the agreement in explicit detail a second time.
The relationship between the military and KBR is established in the contract. To this end, the military controlled the terms and conditions of the contract and mandated strict compliance. See Task Order 139 at §§ 1.1, 7.1. As such, KBR was obligated to perform in line with the terms of the Statement of Work and Task Order 139. Id. at § 7.1. KBR was not permitted to engage in any work which was outside the scope of the contract without prior approval from the military contracting authorities. Id. at § 7.1. However, KBR was responsible for the quality of its work and the coordination of all aspects of its performance, including supervision of its employees. Id. at §§ 1.11, 1.14, 7.1. The agreement makes clear that the military was not required to supervise KBR's work, other than to monitor performance under the contract to ensure that KBR did not submit any false claims for compensation to the government.
Task Order 139 "governs the base life support functions" to be performed by KBR at military bases in Iraq and specifies the services to be provided thereto including Facilities and Operations & Maintenance Services. Task Order 139 at § 1.0. Applicable to the instant matter, section 8 of Task Order 139 details Operations and Maintenance Services, which consists of maintenance and repair of facilities and repair or replacement of equipment and major electrical appliances in the RPC. Id. at § 8. The Task Order sets forth three separate levels of maintenance services: Level A -- Full Service; Level B -- Limited Maintenance; and Level C -- No Maintenance. Id. at § F.2. According to the contract, it was the responsibility of the Mayor's Cell to prioritize the level of maintenance for each facility. Id. at § F.1.2. However, the evidence presented by the parties shows that the decision to engage KBR to provide only Level B maintenance was made by higher commanders within the military and the contracting authorities at the DCMA and may have been made without consulting the base mayors. In any event, the operative portions of Task Order 139 which applied to Level B maintenance did not explicitly set forth any electrical standards governing KBR's performance. See Id. at §§ F.2.2, F.4.2. In addition, the contract did not include any specific standards for the completion of technical inspections of the facilities. See Id. at § 8.1.2. Instead, the terms and conditions of the contract are silent regarding the standard of KBR's electrical performance under Level B maintenance. See Task Order 139 at § F.2.2.
While Level A maintenance was not selected, it is important to note that this level of maintenance would have required the contractor to provide preventative maintenance services at the base every 60 days, including a requirement to conduct grounding checks on equipment and major electrical appliances. See Id. at § F.4.1.1 Indeed, the provision governing preventative electrical maintenance required the contractor to "[c]heck for damage or tampering with switches, outlets, junction boxes, control panels, circuit breakers, fuses, grounding rods, and overloading." Id. Another option which was not selected, "Refurbishment," would have required that upgrades to the facilities be performed to Western construction standards. See id. at § 8.2.1.*fn8 However, no refurbishment of the RPC or LSFB1 was ever ordered by the military.
G.Processing Service Order Requests
The Court detailed the procedures for the processing of service order requests at the RPC in its prior decision. Harris, 618 F. Supp. 2d at 412. Relevant here, all service order requests were initiated by soldiers on the ground, funneled through the Mayor's Cell*fn9 , where the requests were prioritized and then forwarded to KBR for completion. Task Order 139 at § F.2.2.3; (Docket Nos. 265 at § II, ¶¶ 64-65; 283 at ¶¶ 64-65). Although a working relationship existed between the base camp Mayors and KBR personnel, KBR staff responded to work orders without oversight or inspection by the military. (Docket Nos. 265 at § II, ¶¶ 64, 68; 283 at ¶¶ 64, 68). If KBR believed that the scope of the work order was outside the parameters of its contract for Level B maintenance, its representatives were not permitted to complete the work but would return the work order to the Mayor's Cell for further direction and approval. See Task Order 139 at § F.184.108.40.206; (Docket Nos. 265 at § II, ¶¶ 64-65, 69; 283 at ¶¶ 64-65, 69).
H.Evidence of Interpretation of LOGCAP Contract
Colonel Kirk Vollmecke provided a sworn statement to the Department of Defense Inspector General ("DODIG") in conjunction with its investigation of the circumstances of this case. (Def. Ex. 29, Docket No. 263-52 at 12-85).*fn10 Colonel Vollmecke testified that in his position as Commander of the DCMA, he reviewed all of the relevant contractual provisions. (Id.). His interpretation of the contract was that it contained no explicit standards for KBR's performance, including no requirements that electrical work be completed in accordance with NEC or British standards. (Id. at 52). Colonel Vollmecke further explained that by signing the administrative change letter authorizing KBR to commence Level B maintenance at the RPC, the military accepted KBR's assumptions and thereby waived the requirement that KBR complete full technical inspections of all of the buildings prior to assuming responsibility for same. (Docket No. 263-52 at 32, 36). From his perspective, DCMA personnel should not have waived the requirement that KBR complete full technical inspections of the facilities prior to initiating Level B maintenance services. (Id.).
Colonel Vollmecke also stated that the contracts did not include any provisions specifying that KBR only hire employees who were certified to perform electrical work. (Id. at 41-42). He said that the lack of such requirements was possibly the result of an assumption that the individuals KBR hired would be qualified to perform electrical work. (Id.). But, he did not believe that such an assumption was realistic because the contractor staff of approximately 68,000 individuals was over 60 percent foreign national-based and generally unfamiliar with Western electrical standards. (Id. at 41). He faulted several individuals within DCMA for failing to include explicit electrical performance standards and requirements for certifications in the contract. (Id.). But, he explained that the DCMA was under tremendous pressure during the events in question which coincided with the "Surge",*fn11 a military maneuver wherein 5 brigades of troops (approximately 20,000 soldiers) were added to complete the military's mission in Iraq, resulting in a corresponding increase in the number of hardstand buildings being occupied by soldiers, the number of contractors engaged in the war theatre and, likewise, the number of contractual changes required of the DCMA in its oversight of the military contractors. (Id. at 42).
Colonel Vollmecke stated that the contracts were not initially developed for a semi-occupation environment and worked well at the beginning of the war when only a limited number of bases were involved. However, he testified that "holistic" changes were not made to the contract as the war shifted toward semi-permanent occupation of Iraq by the joint forces with the assignment of soldiers to live in thousands of Iraqi hardstand buildings. (Id. at 43). As is set forth in the DODIG's Report, Colonel Vollmecke instituted several changes to the contracts after the accident to Staff Sergeant Maseth. (Id. at 26-27). The later adopted terms included explicit standards for electrical work and technical inspections and required that all contractor personnel be qualified to perform electrical work. (Id.).
The evidence demonstrates that certain military personnel expected that KBR would perform its electrical work safely and in accordance with Western electrical standards. These individuals, however, had limited knowledge of the actual requirements that the military set forth in the contract with KBR.
Among them, Brigadier General Satterfield testified that he had limited knowledge of Task Order 139, indicating that he had "read" the task order but was not directly involved in contracting. (Satterfield Depo at 141, Pl. Ex. E, Docket No. 268 at 7). Despite same, he provided testimony concerning his understanding of KBR's agreement with the military. (Id.). General Satterfield believed that the electrical standard required under the contract was the British standard. (Id. at 146-147). He further explained that the military's "good enough" standard did not apply to electrical safety issues and that the military's election of Level A or Level B maintenance should not have lowered the contractual performance requirements imposed on KBR under the contract. (Id.). General Satterfield also testified that he did not believe that rewiring the RPC buildings or upgrading the electrical facilities would be new work outside of Level B maintenance permitted without further direction by the military under the LOGCAP contract. (Id. at 158-160, 162-163).
The base camp mayors at the RPC, SSG Skaggs and CW2 David Carrier, both testified that their expectations were that KBR would have performed grounding and bonding on its work at the RPC in response to service order requests as a part of KBR's general performance duties. (Docket No. 265 at § II, ¶¶ 79-82). They also confirmed that KBR neither requested that it be authorized to rewire LSFB1 nor sought authorization to perform grounding and bonding at the base because such duties were outside the scope of KBR's contract. (Docket No. 265 at § II, ¶¶ 74, 77). For his part, SSG Skaggs testified that he was unaware of the scope of the electrical deficiencies at LSFB1 and claimed that if he would have been made aware of such deficiencies, he would have initiated the process to have the building rewired or repaired. (Docket No. 265 at § II, ¶¶ 54, 74, 77, 78).
I.Service Order Requests / Shocking Incidents
The evidence shows that KBR was never specifically directed to repair the deficiencies in LSFB1 which were identified in the technical inspection report, (Docket No. 262 at ¶ 166), despite the fact that KBR presented the technical inspection report to the military in February 2007 and again, on November 5, 2007. (Docket Nos. 262 at ¶¶ 168-170; 265 at ¶¶ 168-170). In addition, like the prior subcontractor, WGI, the military never directed KBR to upgrade the substandard electrical systems in the RPC buildings. (Def Ex. 26, Docket No. 263-37:48). KBR did, however, respond to several work orders and complete maintenance work at LSFB1 and in the surrounding area.
With respect to service order requests, Plaintiffs have identified nine work orders which they argue have some relevance to the instant case, including:
Work Order D-1682 (June 14, 2006) stating "Please ground our hot water heater, people are getting shocked while showering";
Work Order D-1940 (July 4, 2006) stating "install grounding wire for the water heater and motor pump";
Work Order D-5204 (February 13, 2007) noting a problem at "Pump for LSF
Headquarters Inop"; Work Order 1208997 (June 23, 2007) "pipes (shower and sink) have voltage-got shocked in shower and sink"; Work Order 120811 (July 8, 2007) (no description); Work Order 1109481 (June 23, 2007) stating "install grounding on panel"; Work Order 1109702 (June 26, 2007) describing installation of wire on grounding panel; Work Order 1205258 (July 8, 2007) "water pump leaking on top of building thru roof"; Work Order 2193735 (November 2, 2007) "WP pulsating badly."*fn12
(See Docket No. 265 at § II, ¶ 87; Pl. Ex. U, Docket No. 276). The work order documents do not explicitly state that work was to be performed by KBR in accordance with any electrical standards. (Id.). KBR responded to the identified service order requests and the documents are marked as if the work was completed. (Id.). KBR disputes the relevance of these work orders because none of them refer to a complaint that the water pump on the roof at LSFB1 caused an electrical shock and also argues that certain of them did not even pertain to LSFB1. (Docket No. 283 at ¶ 87). To this end, Juan Castellanos testified that the work orders from June of 2007 describing the installation of grounding and wires on the "panel" did not pertain to LSFB1 but to an exterior main distribution panel for which KBR had full maintenance responsibilities. (See Docket No. 283 at ¶ 87.f., 87.g; Castellano Depo at 142, Def Reply Ex. 8, Docket No. 284-8). Castellanos' account is the only witness testimony in the record to which the parties have directed the Court to substantiate these work orders. In fact, the only competing evidence that Plaintiffs have cited is their experts' interpretations of the work orders, but these individuals have no actual knowledge of what area or building of the RPC the work orders described.*fn13 (See Docket No. 265 at § II, ¶ 87). Thus, because Castellanos' testimony is uncontroverted, work orders 1109481 (June 23, 2007) and 1109702 (June 26, 2007) may have no bearing on this case.
Several soldiers testified that they were shocked in the shower and bathroom facilities in LSFB1, including Sergeant First Class Justin Hummer, and MSG Mark Layman. (Docket No. 265 at § II, ¶¶ 88, 90, 91, 94). There is also evidence that another soldier, Faris Shamoon,*fn14 was shocked at LSFB1. (Docket No. 265 at § II, ¶ 92). The last of these shocking incidents was reported in the summer of 2007. However, there is no evidence that links the source of their shocks to the subject water pump. (Docket Nos. 262 at ¶ 191; 265 at § I, ¶ 191; Def. Ex. 36, Docket No. 263-61 at ¶ 22). The soldiers each testified that the shocks subsided for some time after KBR responded to the work orders they submitted. (Docket No. 262 at ¶ 181, n.2; Pl. Ex. U, Work Orders D-1682; D-1940; D-5204; 208997). But, the soldiers also explained that they did not consider the shocks as a serious issue when compared to the other risks they faced as they served during in the war in Iraq. (Docket Nos. 262 at ¶ 182; 265 at § I, ¶ 182).
In November of 2007, the military, through base camp Mayor SFC Skaggs, requested that KBR install a generator near LSFB1 to power an ECCM jamming device*fn15 for protecting against vehicle-borne improvised explosive devices. (Docket No. 262 at ¶ 183; 265 at § I, ¶ 183). KBR representatives toured the area with military officials and advised them that "the electrical power system in the area of LSFB1 should not be used to provide power for the generator because the wiring was in 'very poor condition' and 'everything was maxed out.' KBR and military personnel observed the substandard wiring for LSFB1, including wiring into the building that bypassed the breaker, wiring that had splices that needed to be replaced, and tar on the panel inside LSFB1." (Docket No. 262 at ¶ 184). KBR provided the military with an "Electrical Summary" of the area which reflected that the electrical system was operating at 100% capacity, and included pictures of the deficient wiring in the electrical boxes. (Pl. Ex. X, Docket No. 277-1 at 2). The parties dispute whether KBR requested that it be permitted to rewire the entire area at that time. (Docket Nos. 262 at ¶¶ 184, 185; 265 at § I, 184, 185). In any event, despite the information provided by KBR, on December 4, 2007, SFC Skaggs specifically requested that KBR immediately "install a generator with full O&M support at ECP 66 (LSF Gate)." (Docket No. 263-51 at 23) (emphasis added). He added that "[t]he generator is necessary to provide power to a new ECCM device that is integral to force protection" and "[t]his installation is required due to the inadequate electrical system currently in place." (Id.). SFC Skaggs' request was approved and the military directed KBR to perform such work on December 6, 2007. (Id. at 24). Later that month, the military directed KBR to remove the generator. (Docket No. 262 at ¶ 185). Then, SFC Skaggs and another soldier installed the ECCM jamming device into the existing electrical system, ignoring KBR's warnings that the system was at full capacity. (Id.).
J.Warnings to Staff Sergeant Maseth
Prior to the accident, Staff Sergeant Maseth was warned by two of his fellow soldiers of the electrical hazards present at LSFB1 during October of 2007. SFC Hummer testified that he told Maseth that electrical shocks "had been an ongoing problem." (Docket Nos. 262 at ¶ 178; 265 at § I, ¶ 178). Hummer specifically referenced shocks in the shower to Maseth. (Id.). Hummer also warned Maseth to "watch himself" and to "make sure that he checked the water with his hand before he got in" the shower. (Id.). Similarly, Staff Sergeant Matthew Newsom testified that he recalled warning Maseth of the electrical problems in the shower around the time that Maseth arrived at the base. (Docket Nos. 262 at ¶ 179; 265 at § I, ¶ 179). Beyond warning of the risk of electrical shock, SSG Hummer testified that he also told Maseth that the entire building needed rewired in order to fix the electrical shock problem. (Docket Nos. 262 at ¶ 180; 265 at § I, ¶ 180).
The evidence presented to the Court also demonstrates that Staff Sergeant Maseth received and acknowledged a fire inspection report of LSFB1 dated November 19, 2007. (Def. Ex. 34-B, Docket No. 263-59 at 5-9). The report was prepared by KBR employee, Inspector Captain James Cook, and identifies certain electrical deficiencies at LSFB1. (Id. at 8). A chart titled "BUILDING - FIRE RISK MANAGEMENT SURVEY" identifies electrical deficiencies including frayed and improper wiring. (Id. at 5). A report titled "HAZARD/DEFICIENCY INSPECTION RECORD" states that Kitchen Room B has "spliced wires near stove/ oven" and that Room H had a "Hot Water Heater hard ...