On Monday, the Pittsburgh Tribune-Review featured a story about U.S. Army Lt. Col. Dominic "Rocky" Baragona, who was killed in a traffic accident in May 2003 while serving in Iraq. The Humvee in which Baragona was a passenger collided with a truck owned by the Kuwaiti shipping and transport company, Kuwait & Gulf Link Transport Co. (KGL). At the time, KGL was a contractor for the Army Central Command unit headquartered at Fort McPherson in Atlanta, Georgia.
Baragona's parents filed a wrongful death lawsuit against KGL and the truck driver in a federal court in Georgia. In November 2007, the court entered judgment against the no-show defendants for $4.9 million in damages. The Baragonas have yet to see a single penny from the award, however, as KGL jumped into the fray to appeal the ruling on the grounds that the court lacks jurisdiction. (KGL decided to show up after the Department of Defense issued the company a letter to “show cause” why it should not be debarred for refusing to accept service of process in the lawsuit. It seems the government's purse strings are powerful enough to pull a Kuwaiti company all the way to Atlanta.)
The Baragonas sought justice for their son, but even with the assistance of a U.S. Senator, they were either brushed off or given the runaround by Army investigators, the Kuwaiti government, and KGL. The federal lawsuit was their last resort. Even with a favorable judgment backing them up, the ultimate outcome remains in doubt for at least the next several years. An adverse appellate ruling on a purely procedural matter having nothing to do with KGL's culpability could leave the Baragonas empty-handed and set them all the way back to square one.
In March, Sen. Claire McCaskill (D-MO) introduced the "Lieutenant Colonel Dominic 'Ricky' Baragona Justice for American Heroes Harmed by Contractors Act" (S. 526). As a condition for doing business with the federal government outside the U.S., the contractor would have to agree to be bound by U.S. court jurisdiction in lawsuits alleging that performance of those contracts resulted in serious bodily injuries to members of the U.S. armed forces, civilian government employees, and U.S. citizen employees of contractors. The bill would apply to all lawsuits filed after September 11, 2001, so the Baragonas still have a ray of hope.
U.S. operations in Iraq and Afghanistan have pushed the boundaries of the law when it comes to holding overseas contractors accountable. With so many important contractor liability cases pending in the courts, including the Baragonas' lawsuit, the Custer Battles False Claims Act case, and the personal injury lawsuits against L-3 Communications, CACI International, and Blackwater/Xe, those boundaries need to be firmly established once and for all.
-- Neil Gordon