Defense Contractor Wants Afghan Law Applied to Suit in LA–Except for the Flogging Part

Published: Jul 26, 2016

Defense Contractor Wants Afghan Law Applied to Suit in LA–Except for the Flogging Part

Defense Contractor Wants Afghan Law Applied to Suit in LA--Except for the Flogging Part Credit: Wikipedia Marmal Military Base in Afghanistan.

At first glance, the complaint looks like your average negligence suit. A drunk man driving a company bus hits another bus driver, injuring her back, neck and bladder. She wants money from the drunk driver and the company.

Except the accident took place on a military base in Afghanistan. The company, defense contracting giant AECOM, claims Afghan law should apply to the suit, which was filed in Los Angeles County Superior Court in 2014.

Not the part about drunk drivers getting 60 to 80 lashes or the part about women under Sharia law potentially not being allowed to testify in court. No, it’s the part about no vicarious liability for employers, no punitive damages and limited compensatory damages.

On Thursday, Judge Gregory Alarcon will decide which law to apply—a surprisingly close question, without many on-point precedents.

To Michael Doyle of Doyle LLP in Houston, who represents plaintiff Deidra Perry, AECOM’s embrace of Sharia law is nothing more than a smokescreen to avoid liability.

“You don’t get to pick and choose Sharia law where it helps you,” Doyle said.

AECOM is represented by Gordon & Rees partner H. Scott Sirlin, who in an email called the case “a very standard application of civil/commercial law to the issue that arises in any case where an event takes place in a jurisdiction other than the one where the case is filed.”

The dispute began in 2013, when Luis Edgardo Osorio, who was working at the Marmal Military Base in Mazar e Sharif for AECOM as an avionics mechanic, went to a “Latin Night” party on the NATO side of the base.

Americans in Afghanistan aren’t allowed to drink alcohol, but he said someone gave him a 16 ounce water bottle filled with pure vodka.

He allegedly drank it, then got behind the wheel of a small AECOM bus, which was available for off-duty use by employees to get around the enormous base.

Osorio crashed into Perry, who worked for another defense contractor, “causing her bodily injuries requiring medical care and treatment,” according to the complaint seeking unspecified damages.

Perry now lives in Texas. Osorio in Tennessee, and AECOM, which has about 95,000 employees worldwide, is based in Los Angeles.

So where does the suit belong? “I confess, I did a little forum shopping. I did not pick Afghanistan,” Doyle said.

But AECOM argues that the law of the Islamic republic should apply because that’s where the accident happened. California doesn’t have an overriding interest in the litigation, AECOM says, so the law of the place where the injury occurred is applicable.

For example, when a California resident driving in Mexico struck a Mexican citizen, a California court of appeals held that Mexican law limiting damages applied, even though the suit was filed in California.

Fair enough.

But in this case, everyone was American and the accident happened on a joint American-NATO military base which, according to the plaintiffs, is governed by American law. It’s hardly the same thing.

Two precedents that are more applicable involve astonishingly similar facts—but with different outcomes.

In one case, an Army Ranger died of electrocution while showering in his living quarters in Iraq. The problem? A faulty water pump that was supposed to be maintained by defense contractor Kellogg, Brown & Root.

The soldier’s family sued for negligence. KBR argued the laws of Iraq should apply, but a judge in the Western District of Pennsylvania said no. “There is simply no reason for [KBR] to be shielded by Iraq’s pro defendant law in this case,” the court found in 2011.

But there was another case, when a National Guardsman in Iraq was electrocuted as he was power washing a Humvee. His family sued, claiming that contractor Arkel International was to blame for an improperly grounded wire.

There’s a twist. It was the family that wanted Iraqi law to apply. Their claim was otherwise barred by a one-year wrongful death statute of limitations in Louisiana, versus three years under Iraq’s law.

In 2012, a split U.S. Court of Appeals for the Fifth Circuit held that Iraqi law applied. “Here, the conduct of alleged negligence in maintaining and repairing the generator, and the resulting injury of Sergeant Everett’s death, both occurred in Iraq. … Accordingly, Iraq’s substantive law applies to the merits.”

Taken together, the decisions don’t exactly provide a roadmap for Judge Alarcon in Los Angeles.

It’s little wonder AECOM is gung-ho to invoke Afghan law.

The defendants explain that judges there when interpreting the Afghan Civil Code look for guidance to Hanafi law, a school of religious jurisprudence within Sunni Islam.

Under Hanafi law, the “judgment of the act is made to fall on the person who does it.” In other words, AECOM is off the hook. It’s all the fault of Osorio, the drunk driver.

But the plaintiffs point out a rather large incongruity. The get-out-of-jail-free card on vicarious liability isn’t even part of the Afghan Civil Code, they say, but derives instead from Hanafi law.

“AECOM has argued that the religious traditions and teachings of Islam can actually override the civil code of Afghanistan,” Doyle and co-counsel Robert McMahon wrote. “In sum, AECOM demands that the California Superior Court for the County of Los Angeles should actually apply religious traditions and interpretations by Hanafi to dismiss AECOM from this case.”

Contact Jenna Greene at jgreene@alm.com or on Twitter @jgreenejenna.

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