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LTJG Doe v. BP – Is the claim barred by the Feres Doctrine?

By Scott Spivey, Esq., a PLC

LTJG Doe v. BP – is the claim barred by the Feres Doctrine?   As most service members know, generally if not by name, under the Feres doctrine, military members are barred from bringing suit against the U.S. Government for “injuries [that] arise out of or are in the course of activity incident to service.”  The Feres doctrine originally applied only when the service member was injured by another service member.  Later, it was expanded to encompass civilian employees of the government.  Some government contractors have even asserted that it should be further expanded to provide “intra-military” immunity to at least some contractors.  The Feres doctrine spawned from the United States government’s passage of the FTCA (Federal Tort Claims Act) in 1946, which was intended to be a broad waiver of the government’s sovereign immunity.

But does this apply to BP?  Our position is no.  BP is neither the federal government nor a military contractor under these circumstances.  BP is the bad actor or Tort Feasor. Every state has their own standards for Tort Liability or “negligence.”  In Louisiana, we are governed by the Louisiana Civil Code for these.  Civil Code article 2315 provides in part: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” Article 2316 provides: “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”

Generally, negligence refers to a defendant’s conduct, which falls below a legal standard established to protect others against unreasonable risks of harm. This standard is based on a defendant choosing the reasonable alternative available when the harm occurred- the reasonable man standard. (Myers v. Dronet). In Louisiana, the court generally uses the duty-risk analysis approach to determine the liability of the defendant in a tort action for negligence. In order for the defendant to be held liable for negligence, the court must find that the defendant met all of the following elements: 1.Cause-in-Fact 2.Duty  3.Scope of Protection/Limitation of Liability 4.Breach of Duty 5.Damages. Even if you do not live in Louisiana, you may still be covered under Louisiana law.

Okay – that is a lot of legal mumbo jumbo.  But what it means is that an entity is liable for the damages that it causes, when it has a duty to protect the person injured from those injuries, it breaches those duties and the person is damaged.  So, if LTJG suffers neurological injuries or damages that are in fact caused as a result, indirect or otherwise, of her being exposed to a hazardous chemical to clean up the spill caused by BP, it is our position that BP is liable.

However, many have questioned whether the intervening act of the US Coast Guard in employing the spill activities somehow absolves BP of liability.  No – we don’t think so.

While the CG and the US Government may not be liable under the Federal Tort Claims Act pursuant to the Feres doctrine and thus BP arguably cannot bring the CG or the US Government into the suit through what is known as a third-party claim arguing that the CG chose the dispersant, that does not preclude the LTJG’s suit against BP.  In our case, we are not filing a lawsuit at all.  The BP Settlement Fund – that is, DEEPWATER HORIZON MEDICAL BENEFITS CLASS ACTION SETTLEMENT AGREEMENT, as Amended on May 1, 2012 states that first responders are entitled to seek compensation for medical claims.  In this document, “RESPONSE ACTIVITIES shall mean the clean-up, remediation efforts, and all other responsive actions (including the use and handling of dispersants) relating to the release of oil, other hydrocarbons, and other substances from the MC252 WELL and/or the Deepwater Horizon and its appurtenances that were done under the auspices of the Unified Command, BP, or a federal, state, or local authority.”

As such, this is a claim pursuant to an agreement – which is frequently referred to as the law between the parties.  This is absolutely separate from a lawsuit per se.  LTJG Doe v. BP – is the claim barred by the Feres Doctrine?  Short Answer – No

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