What is a tort? It’s a personal injury or property damage inflicted negligently or intentionally. If someone rear ends your car, he has committed a tort. Government contractors can be sued for the alleged torts they commit. The U.S. Government, however, as a sovereign, is immune unless one of the exceptions in the Federal Tort Claims Act applies. The Supreme Court has extended this sovereign immunity in certain cases to the government’s contractors.
Which certain cases? If a government contractor is following government directions it can share the government’s immunity. Although the doctrine originally was applied to products, it now extends to services as well. We were instrumental in conceiving the concept in the l980’s, creating the principles from the long standing 1918 Supreme Court ruling that the government guarantees the contractor’s performance if it follows the government specifications. When we first applied the doctrine in the asbestos litigation, the plaintiffs' attorneys called it the Nuremburg defense.
We have continued to assert the government contractor defense in many tort claims against government contractors. Most recently, we were successful in asserting the defense in a Katrina damage cleanup case. The debris remover, which was following government orders, removed the claimant’s home from a public right of way (the hurricane had moved the house) and the home owner sued. The court dismissed the case based on our argument that the contractor was merely following government directions and therefore shared the government’s immunity. End of case.
And that is what happens. The case goes away on a motion to dismiss. If you are a government contractor, do you even know about this doctrine and more importantly, has your insurance carrier ever heard of it?
What brings all this to mind is a recent ruling in Virginia by the United States Court of Appeals for the Fourth Circuit which has dismissed a suit against CACI International, Incorporated by Iraqi citizens detained at Abu Ghraib prison, near Baghdad, and allegedly tortured. Although this was a preemption of state law case, the federal law involved was the Supreme Court’s opinion in the 1988 Boyle v. United Technologies Corp. case (the seminal government contractor defense opinion). CACI was relieved of liability based on the government contractor defense.
So if a third party makes a claim against you as a government contractor, carefully consider whether you may be able to avail yourself of the so called government contractor defense.