Fortney v. Airtran Airways, Inc.

319 S.W.3d 325, 2010 Ky. LEXIS 147, 2010 WL 2470846
CourtKentucky Supreme Court
DecidedJune 17, 2010
Docket2009-SC-000429-WC
StatusPublished
Cited by5 cases

This text of 319 S.W.3d 325 (Fortney v. Airtran Airways, Inc.) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fortney v. Airtran Airways, Inc., 319 S.W.3d 325, 2010 Ky. LEXIS 147, 2010 WL 2470846 (Ky. 2010).

Opinions

OPINION OF THE COURT

An Administrative Law Judge (ALJ) determined that Clarence Fortney’s death in an airplane accident was not work-related because it occurred while he was traveling from his home to the city where he was based and failed to come within the “service to the employer,” “employer operating premises/conveyance,” or “positional risk” exception to the going and coming rule. The Workers’ Compensation Board reversed, however, convinced that the evidence compelled a favorable finding. Sarah King Fortney, Clarence Fortney’s widow and also the administratrix of his estate and guardian of his minor child, appeals a decision by the Court of Appeals to reverse and reinstate the ALJ’s decision.

[327]*327We reverse and remand the claim for consideration of the remaining issues. The ALJ misapplied the law by failing to consider all factors material to concluding whether Fortney’s death came within the service to the employer exception. The evidence compels a favorable legal conclusion when analyzed correctly. Thus, we refrain from addressing the other exceptions.

Clarence Fortney, a pilot employed by Airtran Airways, Inc. and passenger on Comair Flight 5191, was killed when the plane crashed on takeoff in Lexington, Kentucky on August 27, 2006. Fortney resided in Lexington, to be near family. His work was based at Airtran’s hub in Atlanta, Georgia, which necessitated a lengthy commute eight to ten times per month. Fortney made a practice of flying between Lexington and Atlanta because it was more convenient and efficient than driving. Fortney would arrive in Atlanta; go directly to the assigned airplane; pilot a number of Airtran flights between Atlanta and other destinations; then return to Lexington. Although Airtran paid Fort-ney’s expenses when his schedule required an overnight stay in a city other than Atlanta, he and other pilots shared the expense of an apartment for overnight stays in Atlanta.

Fortney indicated when applying for employment with Airtran that he would be willing to relocate and that there were no restrictions on where he would locate, but Airtran never dictated where he or other pilots must reside. Airtran employed about 1450 pilots who resided throughout the United States in August 2006 and was required to know and follow the income tax laws of numerous states and localities1 because 70% of the pilots resided outside the state of Georgia. Airtran incurred additional expense due to participating in a nationwide Transportation Security Administration database that was updated every 24 hours and due to verifying the identity of pilots seeking to fly free or at a reduced fare on Airtran flights.

Regardless of where they resided, all Airtran pilots reported to Atlanta to begin and end their flights. Consistent with industry practice, Airtran provided employees and their families with free or reduced-fare travel on Airtran flights and participated in reciprocal conveyance agreements with other airlines, which also provided free or reduced-fare travel on aircraft operated by those airlines. Nothing required Airtran pilots to fly when commuting to and from work, but those who lived outside Georgia generally used the free or reduced-fare arrangements in order to be able to afford to commute. Airtran required pilots to make two unsuccessful attempts to reach Atlanta in time to pilot an assigned flight before being excused. Pilots performed no work while commuting by am; were not paid until they checked in at the Atlanta hub for an assigned flight; and were not reimbursed for commuting expenses.

Airtran did not operate in Kentucky in August 20062 but had a reciprocal arrangement with Comair, which permitted pilots to travel free or at a reduced fare in a cockpit jumpseat on a “ ‘Space Available’ basis.” The agreement required those who did so to “observe strict professional conduct, decorum, and wear the carrying airline’s appropriate dress for the first [328]*328class interline travel or full uniform.” Testimony indicated that a pilot flying under the agreement would be seated in the cabin if space was available and could be disciplined for inappropriate conduct.

Fortney was commuting to Atlanta under Airtran’s arrangement with Comair when he was killed. Sarah Fortney filed an application for benefits under KRS 342.750 on behalf of herself and their minor child, as Fortney’s survivors, and on behalf of Fortney’s estate. The contested issues submitted for a decision included “Compensability/going and coming rule” and “Course and scope of employment” as well as other issues.

Airtran argued that Fortney’s death was not work-related because he was simply commuting to work; provided no service to the employer in doing so; and benefited personally from being able to commute free or at a reduced fare under the reciprocal arrangement with Comair. Airtran argued that the employer conveyance doctrine was an unnecessary extension of current law as expressed in Receveur Construction Company/Realm, Inc. v. Rogers,3 Moreover, Fortney’s travel failed to come within the doctrine because Airtran had no control over the Comair flight on which he was killed.

The ALJ determined that Fortney’s death was not compensable under the “service to the employer,” “employer operating premises/conveyance,” or “positional risk” exception to the going and coming rule. This appeal concerns whether the findings were based on a correct interpretation of the law and reasonable under the evidence.

I. Background

Chapter 342 requires a compen-sable injury to arise out of and in the course of the worker’s employment.4 The “going and coming” rule considers an injury incurred while commuting between a worker’s home and workplace to be non-compensable absent exceptional circumstances. The rationale supporting the rule is that perils encountered during travel to and from work are no different from those encountered by the general public and, thus, are neither occupational nor industrial hazards for which the employer is liable.5 Courts have, however, adopted several exceptions to the rule to accommodate various employment circumstances. The principles supporting the exceptions often overlap.

Kentucky adopted the earliest or one of the earliest exceptions to the going and coming rule in Palmer v. Main,6 a case in which a worker died as a result of an injury sustained off the employer’s premises while performing an errand at the employer’s direction. The Palmer court noted the existing rule under which an accident was not viewed as arising out of the employment if it occurred off the employer’s premises, on the street, from causes to which all on the street were exposed. Refusing to withhold the Workers’ Compensation Act’s protection to an injury that occurred in the course of employment simply because it occurred off the employer’s premises, the court determined that an accident arises out of employment if it is “the direct and natural result of a risk reasonably incident to the employment in which the injured person was engaged.”7

[329]*329As modified by Palmer, the going and coming rule continued to view an injury due to employee transit as being non-com-pensable unless the injury occurred in the course of employment.

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Fortney v. Airtran Airways, Inc.
319 S.W.3d 325 (Kentucky Supreme Court, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
319 S.W.3d 325, 2010 Ky. LEXIS 147, 2010 WL 2470846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fortney-v-airtran-airways-inc-ky-2010.