Iraqi insurgent attacks against a United States military supply-truck convoy constituted “intentional acts by third parties due to (the decedents’) employment” bringing claims by survivors of civilian drivers killed in the attacks within the coverage of the Defense Base Act (“DBA”), 42 U.S.C.A. §§ 1651 to 1654. Therefore, the DBA preempted the survivors’ state tort claims against the employer, a civilian company contracted to supply security to military convoys in Iraq.
The plaintiffs also argued that if an employee's injury fell within the scope of the DBA's coverage as the result of a willful act of a third party directed against the employee because of the employment, the employee could nevertheless proceed with an intentional-tort claim against the employer under the theory that the employer knew the third party's assault was substantially certain to occur and failed to protect the employee from the assault. The plaintiffs alleged that the employer was on notice that the day of the attacks was a day that would present an increased risk of insurgent violence and that its employees were concerned about the levels of violence that their convoys were facing, and therefore the employer was substantially certain that the plaintiffs' convoys would be attacked but failed to exercise its power to halt the convoy operations. The court held that the intentional-tort exception could not include a “substantially certain” theory of recovery, because to allow this extension would inject into the DBA's workers' compensation scheme an element of uncertainty at odds with the statute's basic purpose.
The court also held that fraud claims against the employer, alleging the company recruiters intentionally misrepresented to the decedents that the job would not include being sent into combat, were preempted by the DBA, because an employer's deceit that precedes and helps produce an otherwise compensable injury merges into that injury for purposes of compensation coverage. Fisher v. Halliburton, 2012 WL 90136 (5th Cir.(Tex.) Jan 12, 2012) (not designated for publication).