Understanding the preemptive role of the Defense Base Act (‘‘DBA’’) is crucial for any federal government contractor performing overseas work for the U.S. military or federal departments or agencies. The DBA creates an exclusive workers compensation scheme providing disability and medical benefits and vocational rehabilitation to covered employees, and death benefits to eligible survivors of employees.
The DBA applies to employees of defense contractors working outside the U.S. whose injuries or death arise out of the course of their employment. It is the exclusive remedy for such employees against their employers. In other words, contractor employees may not pursue state tort law claims or state workers’ compensation claims against their employer for injuries covered by the DBA. Defendant employers can and should move to dismiss state law tort claims by employees or former employees based on the DBA exclusivity.
Background of the DBA.The DBA, enacted in 1941, es- tablishes a uniform, nationwide, federally administered—and exclusive—workers’ compensation scheme for the benefit of all government contractor em- ployees who suffer ‘‘injury or death...under a contract ... performed outside the continental United States ... in connection with the national defense or with war ac- tivities.’’ 42 U.S.C. § § 1651(a), 1651(a)(4), 1651(b)(1). ‘‘Except as ... modified,’’ the DBA incorporates the provisions of the Longshore and Harbor Workers’ Com- pensation Act, (‘‘LHWCA’’), 33 U.S.C. § 901 et seq., ‘‘in respect to the injury or death of any employee’’ covered by the DBA. 42 U.S.C. § 1651(a); see O’Keeffe v. Pan Am. World Airways, Inc., 338 F.2d 319, 322 (5th Cir. 1964) (discussing the DBA’s independent purposes as well as its incorporation of the LHWCA compensation mechanism). The DBA’s purpose is reflected in its own language, which establishes a federally administered, predictable, no-fault, and exclusive workers’ compensa- tion scheme for military support contractor employees who are injured or killed overseas ‘‘in connection with the national defense or with war activities.’’ 42 U.S.C. § 1651(b)(1).
The unique objectives of the DBA are also reflected in the provisions of the War Hazards Compensation Act (‘‘WHCA’’). Under the WHCA, the United States is re- quired to reimburse employers and insurers for claims paid under the DBA in connection with an ‘‘injury [or death that] proximately results from a war-risk haz- ard.’’ 42 U.S.C. § 1701(a).
The WHCA supplements the DBA by providing for (1) reimbursement of employer/carrier payments in cases of overlapping coverage where the injury oc- curred within the scope of the employment and was caused by a war-risk hazard; (2) direct coverage to an employee when the DBA does not apply (i.e., when the incident occurred outside the scope of employment) but the employee was injured as a result of a war-risk haz- ard; and (3) coverage for capture and detention, in ad- dition to injury and death.
The DBA’s exclusivity-of-remedy provision, entitled ‘‘Liability as exclusive,’’ declares that [t]he liability of an employer ... under this chapter shall be exclusive and in place of all other liability of such employer ... to his employees (and their depen- dents) ... irrespective of the place where the contract or hire of any such employee may have been made or entered into.
42 U.S.C. § 1651(c). The DBA, like the LHWCA and other workers’ compensation schemes, was designed to strike a balance between employees and employers. See Morrison-Knudsen Constr. Co. v. Dir., Office of Workers’ Comp. Programs, 461 U.S. 624, 636 (1983). ‘‘Employers relinquished their defenses to tort actions in exchange for limited and predictable liability. Em- ployees accept the limited recovery because they re- ceive prompt relief without the expense, uncertainty, and delay that tort actions entail.’’ Id.; see also Potomac Elec. Power Co. v. Director, Office of Workers’ Comp. Programs, 449 U.S. 268, 282 n.24 (1980) (explaining that ‘‘[t]he compromise nature of workmen’s compen- sation legislation is well recognized’’).
Although the DBA establishes the exclusive, adminis- trative, compensation remedy for ‘‘the injury or death’’ of any covered employee, 42 U.S.C. § 1651(a), it does not define the term ‘‘injury.’’ As such, courts look to the LHWCA, which defines ‘‘injury’’ as accidental injury or death arising out of and in the course of employment ... and includes an injury caused by the willful act of a third person directed against an employee because of his employment. 33 U.S.C. § 902(2).
Responses to Plaintiffs’ Recent Attempts to Avoid DBA Exclusivity.Whether The Injury Arose In The Course Of Employ- ment
The DBA covers injuries that arise out of or in the course of employment. In the key Supreme Court case on this issue, the Court explained that the definition of injury did not require ‘‘a causal relation between the na- ture of employment of the injured person and the acci- dent.’’ O’Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 506-07 (1951). The Court further stated: ‘‘Nor is it nec- essary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the obligations or conditions of employ- ment create the zone of special danger out of which the injury arose.’’ Id. at 507 (internal quotation marks omit- ted).
Plaintiffs have argued in several cases that their inju- ries did not arise within the course and scope of their employment. This argument has been successful in some cases. For example, in Jones v. Halliburton, 791 F. Supp. 2d 567, 587 (S.D. Tex. 2011), the plaintiff was allegedly sexually attacked at night, while she was off- duty in her barracks room. The court held that the plaintiff’s alleged sexual assault was not within the course and scope of her employment because she was not on call while working for the defendant and her al- leged sexual assault occurred while she was off-duty. Id. at 583-88. The court further found that the require- ment that the plaintiff live in housing provided by the defendant and her limited...
