Judge allows KBR Iraqi convoy death cases to trial

HOUSTON But U.S. District Judge Gray Miller also delayed the cases, which were set for trial May 24, saying in a 41-page ruling that the companies being sued -- Halliburton and a former subsidiary, KBR Inc. -- could appeal his ruling. Miller did dismiss one lawsuit in the case.

KBR spokeswoman Heather Browne said the company will appeal.

"We are pleased that the court completely dismissed one of the cases and acknowledged that none of the tragic injuries and deaths that occurred were intentionally caused by KBR," she said.

Halliburton spokeswoman Cathy Mann said because the "lawsuit is based on KBR activity in Iraq, we believe that Halliburton will be found to have no responsibility, legal or otherwise, for the actions alleged."

Scott Allen, an attorney representing several injured drivers and the families of others killed in the attacks, said he was both pleased and disappointed with the ruling.

"It clearly shows we have sufficient evidence and have a right to proceed but we are somewhat upset for our clients, that their trial may be delayed," he said.

The suits filed by truckers and their families accuse Halliburton and KBR of knowingly sending supply convoys into a dangerous area where six KBR drivers were killed and several others wounded on April 8 and 9, 2004.

KBR has maintained its top priority remains the safety and security of all its employees, but that the U.S. military alone decided to send the supply convoys. KBR split from Halliburton in 2007 and operates as a separate, publicly traded company.

Miller had dismissed the cases in 2006, ruling the Army plays a key role in deploying convoys and the judiciary can't second-guess battlefield decisions.

But a federal appeals court sent the suits back to Miller in May 2008, ruling that it may be possible to resolve the lawsuits without making a "constitutionally impermissible review of wartime decision-making."

KBR and Halliburton had again asked that the suits be dismissed, this time on the grounds that any claims made as a result of the attacks are not subject to litigation but instead covered by the Defense Base Act.

The act, a 1941 federal law, provides workers' compensation protection to civilian employees working outside the U.S. on U.S. military bases or under a contract with the U.S. government for public works or national defense. Any compensation under the act would be far less than a potential jury award.

Miller said there is no evidence to show the companies wanted any of the drivers to be injured or killed.

But the judge said he found evidence from two sets of lawsuits related to convoy attacks on April 9, 2004 -- including warnings about possible attacks that day and information that four convoys were being attacked at the moment a fifth was being sent out to the same area -- showed "there is a genuine issue of material fact regarding whether (KBR and Halliburton) had grounds to believe it was likely that the (convoys) would come under attack by insurgents."

Miller said the two companies had not shown the attacks were "both undesired and unexpected." Miller said the workers' injuries or deaths would fall under the act if they were accidental and unforeseen.

In making his decision, Miller cited various KBR employee e-mails, most of which are a part of court documents that have been sealed in the case.

In the week leading up to the attack, e-mails and updates sent out by KBR security managers said reports indicated insurgents were planning attacks and kidnappings and that April 9, which was a Muslim holiday and the one-year anniversary of the U.S presence in Baghdad, would be "especially deadly."

Convoys were first attacked on April 8, 2004. After the attacks of that day, some KBR e-mails suggested halting all convoys on April 9 because "there is tons of intel stating that tomorrow will be another bad day."

The next day's convoys continued, and as four of them were under attack while a fifth was sent out, Ray Simpson, one of KBR's security managers, wrote in an e-mail: "Can anyone explain to me why we put civilians in the middle of known ambush sites? ... Maybe we should put body bags on the packing list for our drivers."

"There is sufficient evidence to hold the defendants' responsible for these men's deaths and injuries," said Allen, who represents clients killed or injured on April 9, 2004.

Miller did throw out the lawsuit filed by Kevin Smith-Idol, a driver, saying KBR and Halliburton did not expect that his convoy would be attacked on April 8, 2004.

Tobias Cole, Smith-Idol's attorney, said he planned to appeal.