McGee v. Arkel International, LLC
671 F.3d 539
5th Cir.2012Background
- Sergeant Christopher Everett, a Texas Army National Guardsman, died in Iraq after an electrocution incident at Camp Taqaddum involving a generator.
- Arkel International, LLC, contracted to maintain generator equipment at the base, was named in the wrongful death/survival actions.
- Plaintiffs filed suit in Texas (Aug 2008) for Iraqi-law-based wrongful death claims; Arkel removed to federal court.
- Louisiana federal court granted summary judgment, holding Iraqi law was not proven and the Louisiana one-year prescriptive period applied.
- The court held CPA Order 17 did not immunize Arkel from Iraqi tort law and that Iraqi law should govern the merits; prescription remained to be decided.
- The Fifth Circuit reversed and remanded for further proceedings to resolve Iraqi-law proof, timing, and remedial-justice issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which law governs merits and prescription? | Iraqi law applies under Article 3543; longer Iraqi prescription. | Louisiana law governs and its one-year prescription applies. | Iraqi law applies to merits; prescription framework under Article 3549(B) applied with remand. |
| Does CPA Order 17 immunize Arkel from Iraqi tort law? | CPA Order 17 immunizes from Iraqi law for tort claims. | Order excludes only contract-based immunity and Iraqi-law process; not tort claims in U.S. | CPA Order 17 does not immunize Arkel from Iraqi tort-law standards in federal court. |
| Does Article 3549(B) permit Louisiana to borrow Iraqi three-year period? | Louisiana may borrow Iraqi three-year period if remedial-justice warrants. | Remedial-justice exception not satisfied; should apply Louisiana one-year. | Remedial-justice exception may apply; reversed and remanded to resolve notice timing and remedial-justice. |
| Has Iraqi law been proven sufficiently to apply? | Present translations and expert opinion prove Iraqi Article 232 (three-year discovery rule). | Translation adequacy and proof of Iraqi law contested. | Iraqi law proven; three-year period starts when injury and cause are known; remand for notice timing. |
| Are parents proper parties under Iraqi law? | Iraqi Code provisions (Articles 5/89) support parental standing. | Standing uncertain; district court never ruled. | Premature to decide; remand for further evidentiary development. |
Key Cases Cited
- Northrop Grumman Ship Sys., Inc. v. Ministry of Def. of the Republic of Venezuela, 575 F.3d 491 (5th Cir. 2009) (foreign-law proof and choice-of-law issues explained)
- Brown v. Slenker, 220 F.3d 411 (5th Cir. 2000) (remedial-justice considerations in 3549 are narrow)
- Marchesani v. Pellerin-Milnor Corp., 269 F.3d 481 (5th Cir. 2001) (two-step Louisiana choice-of-law analysis for torts)