LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 46
case that such products and services are commissioned or rationed expressly by the government
for use by the military during such times.
When the government has requisitioned services or products from a defendant, a
defendant might assert a government contractor defense to liability stemming from actions
related to the provision of these services or products. 182
This defense is based on the notion that
when a PRP is compelled to provide services or products for the United States any injury or
damage arising as a result of performance of that obligation is excusable. The government
contractor defense is “a matter of federal common law which displaces state law . . . Because
federal procurement actively implicates ‘uniquely federal interests’ in ‘getting the Government’s
work done,’ when the three referenced elements are present, state tort law significantly conflicts
with federal interests and federal common law preempts it, providing a complete defense against
state law claims.” 183
In Boyle v. United Technologies Corporation, the United States Supreme Court
thoroughly discussed the application of the government contractor defense. 184
In Boyle, a
wrongful death suit was brought against an independent contractor who manufactured the
helicopter and faulty escape-hatch system that ultimately resulted in a navy pilot’s death after the
182
Courts have held that this is not a viable third party defense with respect to CERCLA. See, e.g., United States v.
Shell Oil Company, 1992 WL 144296, No. CV. 91-0589-RJK, at *10 (C.D. Cal. Jan. 16, 1992). In Shell, the oil
company defendants argued “that the plaintiffs are not entitled to recover because defendants’ actions were
undertaken pursuant to contracts between them and the United States . . . 42 U.S.C. § 9620 addresses the issues of
government contractor liability in the CERCLA context. It provides that nothing in this section shall be construed to
affect the liability of any person or entity under sections 9606 and 9607 . . . In light of § 9620 and the strict liability
language of § 107, this affirmative defense is inappropriate and inconsistent with the third-party defense provided
within § 107. As such, it is dismissed.”
183 Yeroshefsky v. Unisys Corporation, 962 F. Supp. 710, 715 (D. Md. 1997)(citing Boyle v. United Technologies
Corporation, 487 U.S. 500, 504, 512 (1988).
184 487 U.S. 500 (1988).
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM