Is Negligent Performance a Tort or Contract Claim?

The contractor claimed the agency should have done more to prevent a fire. The agency said this was a negligence/tort claim over which the board lacked jurisdiction. The CBCA, however, found enough of a nexus between the government’s contractual obligations and the alleged negligent performance to assert jurisdiction. 

Woirhaye Logging Company, LLC v. Department of Agriculture, CBCA 7767 

• Claim – The Forest Service agreed to sell timber to the contractor. The contractor agreed to cut and harvest the timber. While the contractor was performing, a fire destroyed the timber. The contractor filed a claim. The contractor alleged the agency could have prevented the fire. 
• Tort or Contract – The agency denied the claim. The contractor appealed to CBCA. The agency moved to dismiss. The agency argued the contractor’s claim was for negligence, not for breach. Thus, the agency contended, the CBCA lacked jurisdiction. 
• Negligent Performance – The board noted it can decide actions that arise from a contractual undertaking even though the loss resulted from negligent performance. When a contract defines the parties’ obligations and risks, there is a sufficient nexus between the government’s tortious conduct and the contractual obligations for board jurisdiction. Here, the contract imposed express and implied obligations on each party. That was enough for CBCA jurisdiction. 

The contractor is represented by Lawson E Fite of Schwabe Williamson & Wyatt PC. The government is represented by Jennifer T. Newbold of the Department of Agriculture. 

–Case summary by Craig LaChance, Senior Editor