Opinion
C.A. No. 08C-01-136 FSS.
Submitted: April 21, 2011.
Decided: July 29, 2011.
Upon Defendants' Motion for Reconsideration of Their Motion to Dismiss — GRANTED. Upon Plaintiff's Motion for Reconsideration — DENIED.
FINAL ORDER
1. In light of Deuley v. DynCorp, Defendants move for reconsideration of their motion to dismiss Plaintiff's wrongful death claim. In Deuley, the Supreme Court of Delaware affirmed the dismissal of a wrongful death claim because the decedents waived tort liability in exchange for insurance benefits. Thus, when the decedents were killed during a terrorist attack in Afghanistan while at their post, their estates were only entitled to insurance benefits. Here, Defendants contend the same reasoning applies to this wrongful death claim.
Deuley, et al. v. DynCorp Int'l, Inc., et al., 8 A.3d 1156 (Del. 2010).
Id.
Id.
2. Decedent, Samuel Parlin, was working in Baghdad, Iraq, as a police advisor. It is undisputed that Defendant directed Parlin to the Baghdad Hotel across town for a job interview. While en route, Parlin was killed by a roadside bomb. Although the circumstances that put Parlin in harm's way are debatable, Plaintiff originally alleged Parlin "was killed on January 26, 2006 in Baghdad, Iraq, while performing employment duties. . . ." Plaintiff further alleged that when Parlin was killed, "several thousand United States military and civilian personnel had been injured or killed in Baghdad or other urban areas of Iraq by attacks upon their vehicles." In other words, Parlin undisputedly was killed by an enemy attack on his vehicle while traveling through a war zone on Defendants' business and at Defendants' direction.
3. For Defendants, Deuley is the other shoe dropping. It is undisputed Parlin signed an identical pre-injury release as the one in Deuley. Plaintiff responds by moving for reconsideration of her survival claim, which the court already dismissed based on similar reasoning articulated in Deuley. Preliminarily, the court takes Plaintiff's silence about the wrongful death as tacit recognition that claim is not viable. As to the survival claim, Plaintiff now retrenches, contending that "a significant factual issue exists as to whether [Parlin] traveled to Baghdad Hotel `during the course of [his] employment' or if that travel was `related to the mission.'"
In pertinent part, the pre-injury release states:
The Employee understands and accepts the fact that he . . . may be exposed to dangers due to the nature of the mission. The Employee agrees that neither Employer nor its affiliates will be liable in the event of death to Employee, except as stated below. Employer will obtain . . . insurance . . . on behalf of the Employee. The Employee agrees to accept these insurance benefits as full satisfaction of any claim for death, injury or disability against Employer and its affiliates.
See Parlin v. DynCorp Int'l, Inc., 2009 WL 3636756 (Del. Super. Ct. Sept. 30, 2009) (SILVERMAN, J.).
4. The court understands that Deuley was decided on similar but not identical facts as the ones here. The Deuley decedents were killed at their posts by a terrorist attack in Afghanistan. Parlin was not killed at his post or while advising Iraqi police, but while traveling in a convoy at Defendants' command and on Defendants' business. That raises the question whether the release covered his travel and what happened.
5. The factual distinction does not remove this case from the rule set out in Deuley. On Defendants' instructions, Parlin boarded a convoy to travel across Baghdad. If Parlin was not advising the police then, he was on the job, going about Defendants' business. Parlin was then killed by an attack on his vehicle. That roadside attack, as Plaintiff acknowledges, was attributable to a known risk of Defendants' mission in Iraq. Further, as discussed in the original decision and above, Parlin was following orders when he was killed.
6. Therefore, as a matter of law, Parlin's death was due to a risk of the mission. Under Deuley, the court will not examine the quality of Defendants' reasons for and judgment behind their decision to order Parlin on his last detail. The focus is on what Parlin was doing when he was killed and whether his death came at the enemy's hands. Thus, there is no dispute about any material fact.
7. For the foregoing reasons, Defendants' Motion for Reconsideration is GRANTED, with the effect that Defendants' Motion to Dismiss the wrongful death claim is GRANTED. Plaintiff's motion for reconsideration of the survival claim is DENIED.
IT IS SO ORDERED.