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Burnette v. Sierra Nevada Corporation

United States District Court, D. Arizona

September 17, 2015

William P. Burnette, a single man, and Tracie Garnett, individually and on behalf of the Estate of William Burnette III, Plaintiffs,
Sierra Nevada Corporation; New Frontier Innovations, LLC, Defendants.

ORDER AND OPINION [Re: Motions at doc. 40 and 53]

JOHN W. SEDWICK, District Judge.


At docket 40, Defendant New Frontier Innovations, LLC ("NFI") filed a motion for summary judgment in its favor as to the wrongful death and negligence claims brought by Plaintiff Tracie Garnett ("Plaintiff") on behalf of herself and the estate of her son, William Burnette III ("Burnette"), arguing that such state law tort claims are preempted by the exclusive remedy provision in the Defense Base Act ("DBA").[1] Plaintiff filed her response under seal at docket 47. NFI's sealed reply is at docket 70.

At docket 53, Defendant Sierra Nevada Corporation ("SNC") filed a motion to dismiss pursuant to Rule 12(b)(1) based on the DBA's exclusive remedy provision. The motion was filed under seal. Plaintiff's sealed response is at docket 79. SNC's sealed reply is at docket 83.

Oral argument as to both motions was heard on September 17, 2015.


On October 5, 2013, Burnette was working as a sensor operator on board a plane that was conducting an airborne counter-narcotics surveillance mission when the plane crashed near the border of Panama and Columbia killing Burnette and three other crew members. The surveillance mission was conducted in conjunction with a service contract between SNC and a division of the United States Air Force ("Prime Contract"). Pursuant to such contract, SNC agreed to provide, maintain, and operate aircraft that would "conduct maritime centric, mid-range, high endurance, wide-area detection and monitoring (D&M) of Service Targets of Interest" and conduct "D&M operations against suspected illicit trafficking targets/events against aircraft and against targets on land"[2] for the Joint Interagency Task Force South (JIATF-S), a military entity responsible for the detection and monitoring of suspect air and maritime drug activity in the Latin America region.[3] The surveillance project outlined in the Prime Contract was referred to as the Prospector Program. SNC was responsible for conducting the surveillance activities and transmitting the results over a secure data link to JIATF-S.[4] SNC, in turn, subcontracted with NFI to provide the personnel-such as pilots and sensor operators-for the Prospector Program missions. The NFI's subcontract with SNC ("Subcontract") was in direct support of SNC's Prime Contract with the military.

Both the Prime contract and the Subcontract were "certified for national defense use" as a priority defense contract under federal law.[5] The Prime Contract required SNC to obtain federal workers' compensation insurance pursuant to the DBA and required that any SNC subcontract also contain a DBA insurance requirement.[6] The Subcontract in turn required NFI to provide workers' compensation insurance coverage to employees performing work under the Subcontract, including DBA insurance.[7] NFI secured insurance. NFI's policy included "International Mandatory Workers Compensation Coverage" for "Defense Base Employees" and listed the Prime Contract among the covered projects.[8] The policy term was February 4, 2013 through February 4, 2014, and was therefore in effect at the time of the accident in October 2013.[9] A few days before the accident, NFI confirmed with its insurer that its coverage applied to Prospector Program operations in Panama.[10]

NFI hired Burnette to be a sensor operator specifically for the Prospector Program. He began work on March 27, 2013. After a training course in Colorado, he was sent to Panama. At the time of the fatal crash, Burnette was performing his surveillance duties near the border of Panama pursuant to the Prime Contract and Subcontract. After the crash, NFI notified its DBA insurer of the accident, and the insurer subsequently paid eligible funeral expenses for Burnette's funeral as required by the statute.[11] Decedent was not married at the time of the accident and did not have any minor children or other dependents who would be eligible for payment of any death benefits under the DBA.


SNC brought its motion pursuant to Rule 12(b)(1), asking the court to dismiss Plaintiff's claims for lack of subject matter jurisdiction. It argues that because the Plaintiff's claims are preempted by the exclusive remedy provision of the DBA, the court lacks jurisdiction. It then argues that because the jurisdictional issue is separate from the underlying merits of the case, the court can consider outside evidence and resolve any factual disputes if necessary. The court concludes, however, that the issues regarding the DBA are better raised in a motion for summary judgment, like the one brought by NFI. As noted by the Fifth Circuit, "the applicability of the DBA's exclusivity provision... presents an issue of preemption, not jurisdiction."[12] "Federal preemption is an affirmative defense that a defendant must plead and prove" and as such it should ordinarily be raised in a Rule 12(c) motion for judgment on the pleadings or a Rule 56 motion for summary judgment.[13] Thus, the court will consider SNC's motion to be one for summary judgment.

Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."[14] The materiality requirement ensures that "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."[15] Ultimately, "summary judgment will not lie if the... evidence is such that a reasonable jury could return a verdict for the nonmoving party."[16] However, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."[17]

The moving party has the burden of showing that there is no genuine dispute as to any material fact.[18] Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, the moving party need not present evidence to show that summary judgment is warranted; it need only point out the lack of any genuine dispute as to material fact.[19] Once the moving party has met this burden, the nonmoving party must set forth evidence of specific facts showing the existence of a genuine issue for trial.[20] All evidence presented by the non-movant must be believed for purposes of summary judgment and all justifiable inferences must be drawn in favor of the non-movant.[21] However, the non-moving party may not rest upon mere allegations or denials, but must show that there is sufficient evidence supporting the claimed factual dispute to require a fact-finder to resolve the parties' differing versions of the truth at trial.[22]


The DBA is a uniform, federal compensation scheme. It extends workers' compensation covered under the Longshore and Harbor Workers' Compensation Act ("LHWCA") to employees of certain types of federal contractors. Specifically the DBA applies, inter alia, to:

any employee engaged in any employment... under a contract entered into with the United States [or any component thereof]... or any subcontract, ... where such contract is to be performed outside the continental United ...

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