A majority of the Fifth Circuit reverses and remands the
district court’s dismissal of a wrongful death claim as out of time, finding
that Louisiana’s choice of law statute called for the application of Iraq’s
longer statute of limitations but that compelling considerations of remedial
justice required the Court to allow the suit to proceed once Plaintiffs
establish the actual date on which they had gotten notice of the tragedy
Sergeant Christopher Everett was a Texas Army National
Guardsman deployed to Iraq. On September 7, 2005, while washing a Humvee, a
power washer electrocuted Everett. The cause was an improperly connected
neutral grounding wire on the generator, which supplied electricity to the
power washer. The Plaintiffs are Everett’s parents and heirs, all of whom live
in Texas.
The government told the Plaintiffs about the accident and
gave a packet of information about the incident on December 15, 2005. Though
the packet of information mentioned the involvement of Arkel International, LLC
(Defendant), the Everetts claimed that they were not aware of that until April
2008. Defendant is domiciled in Baton Rouge, Louisiana.
At the time of the accident, Defendant had a contract with
the United States to repair and maintain generator equipment at Sergeant
Everett’s base. Defendant claims that the generator was not the primary cause
of Everett’s death.
The Plaintiff first sued Defendant in Texas state court for
damages, for wrongful death under the Iraqi Civil Code. The Plaintiffs alleged
that several defendants including Defendant had acted negligently in
maintaining the generator and that such negligence proximately caused Everett’s
death. In September 2008, while the Texas case was pending, the Everetts filed
an identical action in Louisiana state court. Again, the Defendants removed the
action to federal court and the Texas action was stayed.
In April 2009, the Texas federal court granted the
Plaintiffs’ motion to dismiss. The Louisiana federal court next granted the
Plaintiffs’ motion to dismiss all defendants except Arkel. In September 2009,
the Louisiana federal court lifted a stay and reopened the action. Defendant
moved for summary judgment, contending that Louisiana’s statute of limitations
barred the Plaintiffs’ claims. The Plaintiffs, however, argued that the Iraqi
statute of limitations applied. The district court gave Defendant summary judgment
and dismissed the action with prejudice. The Plaintiffs noted their appeal.
The U.S. Court of Appeals for the Fifth Circuit reverses and
remands. Since this is a diversity case, the federal Court must apply the
choice‑of‑law rules of Louisiana, the forum state, to identify the substantive
law that applies. The Court states that the law of the state in which the
allegedly wrongful conduct and the resulting injury occurred will apply
regardless of the parties’ domiciles or other linking factors. In this case,
the alleged negligence in maintaining the generator and Everett’s death both
happened in Iraq. Therefore, Iraq’s substantive law applies to the merits.
Next, the Court looks to the Louisiana Civil Code to
determine what the Code provides for prescriptive periods. When the substantive
law of another forum applies, there are two exceptions regarding which statute
of limitations is applicable. The potential bar of another state becomes
relevant only when the prescription and preemption law of Louisiana would bar
the suit.
“It would be fair to say that [the] Iraqi courts at the time
of Sergeant Everett’s death would not entertain a suit brought against a
Louisiana company who had contracted with the Coalition Provisional Authority
and whose alleged negligence while performing under that contract caused the
death of a service member in Iraq. Thus, perhaps there is no limitations period
applicable to such a suit that can be applied. Whether that is the right view,
or whether we only need to know what the Iraqi limitations period would be for
personal injuries claims generally, is a matter to be decided under Louisiana
law inasmuch as it is that state’s choice‑of‑law rules we are interpreting.”
[Slip op. 10‑11]
Next, the Court turns to whether the Iraqi statute of
limitations would bar the suit. The Court notes that the Plaintiffs have the
burden of proving the content and meaning of foreign law, [See Fed. R. Civ.
Pro. 44.1] and Defendant claims that Plaintiff had failed to do so. After
reviewing several sources of Iraqi law, the Court discovered nothing to draw
into question that the applicable prescriptive period ends three years after a
Plaintiff: [1] becomes aware of the claim and [2] figures out who is the
culpable party or parties.
“As Defendant did not put forth any alternative translation
and has not suggested how the translation might be inaccurate, we hold that
Iraqi law on the period of prescription has been proven.” [Slip op. 14] Though
Defendant tried to argue that the Everetts became aware of Defendant’s
involvement in 2005, the Court of Appeals declined to determine such an issue
in a summary judgment context and one which the district court did not
otherwise clearly address. Since the Court found that Iraqi law did not bar the
suit, the Court must determine whether compelling considerations of remedial
justice warranted maintaining the action in Louisiana once Plaintiffs prove the
date on which they got due notice of the tragedy and the identity of the
responsible party.
“First, this action involves a situation where, through no
fault of the Plaintiffs, an alternative forum is not available. Although both
the alleged injury‑causing conduct and the injury occurred in Iraq, that
country does not provide an available forum because of paragraph 3 of CPA Order
17 § 4. The Texas prescriptive period [had] expired and, as Defendant insisted
in the Texas proceeding, that state’s courts potentially lacked personal
jurisdiction over Defendant. The Plaintiffs lacked any other forum than
Louisiana.”
“Second, even were the Plaintiffs’ claims not barred in Iraq
under CPA Order 17, it would be extremely inconvenient for either party to
litigate in Iraq. Defendant is a limited liability company domiciled in
Louisiana and the Plaintiffs are residents of Texas. For all the progress in
Iraqi security that the United States purchased with its blood and treasure,
that country might reasonably be avoided as a desirable forum in which
Americans can litigate.” [Slip op. 17]
“Viewing the summary judgment evidence in the light most
favorable to the nonmovants, we conclude [that] the district court erred in
granting judgment. The suit is barred under Louisiana prescription law, has not
been shown to be barred under the prescription law of Iraq, whose substantive
law applies to the merits of the action, and maintenance of the action in
Louisiana is warranted by compelling considerations of remedial justice. On
remand, the factual issue regarding when Plaintiffs [actually] received [the]
necessary notice will need to be resolved.” [Slip op. 18].
A dissenter would have upheld the district court’s decision.
“In this case, Sergeant Everett’s parents chose, as a matter of convenience, to
sue initially in Texas rather than Louisiana. They thus exposed themselves to
what the majority describes as Defendant’s compelling motion to dismiss for
lack of personal jurisdiction in Texas. Yet they knew within three or four
months of the accident that their son had been electrocuted and they were
informed of the potential involvement of Defendant, a Baton Rouge‑headquartered
company. They could have filed a timely suit in Louisiana under Louisiana law
against Defendant. I would conclude that this chronology did not give rise to
compelling circumstances of remedial justice.” [Slip op. 25].
Citation: McGee v. Arkel Int’l, LLC, No. 10‑30393
(5th. Cir. Feb. 16, 2012).
**** Mr. Richard Ehrlich is a specialist in Corporate, Estate and Personal Financial Planning in Florida. In the course of his career, he has prepared hundreds of estate plans and helped hundreds of small businesses navigate the various issues involving insurance, retirement and employee retention. He has helped numerous families deal with the difficulties of taking care of elderly relatives and assisted with all of their long-term planning and long-term care needs. Finally, he has helped investors with their losses in unsuitable investments. LinkedIn Profile: https://www.linkedin.com/in/richard-ehrlich-777b513/; Attorney Profile: http://www.eldercounsel.com/profile/richard-ehrlich-ehrlich-law-center-pa/; Attorney Profile: https://solomonlawguild.com/richard-ehrlich%2C-esq; Attorney News: https://attorneygazette.com/richard-ehrlich%2C-esq#c35a1098-f039-43ab-b0dc-06cff6dabf61
