On Thursday, June 17 the Kentucky Supreme Court ruled in Fortney v. Airtran Airlines that Sarah Fortney, the widow of and administratrix for the Estate of her late husband Clarence Fortney, is entitled to work-related benefits from her husband’s death in the tragic Comair Flight 191 crash at Bluegrass Airport on August 27, 2006.
Airtran employed Mr. Fortney at its hub in Atlanta, Georgia and Mr. Fortney commuted eight to ten times a month to the Atlanta hub from Lexington, where he chose to live to be close to family. Following his death his widow, Sarah Fortney, sought worker’s compensation benefits from Airtran.
After a lengthy appeals process and several reversals in both administrative court and the Kentucky Court of Appeals, the State Supreme Court ruled in Mrs. Fortney’s favor, stating that there is sufficient evidence to support Mrs. Fortney’s claim for worker’s compensation from Airtran in her husband’ death.
The issue before the court is whether Airtran is liable for Mr. Fortney as an employee while he commuted from Lexington to Atlanta onboard a Comair flight. Airtran argued that Mr. Fortney’s death falls under the “going and coming” rule, wherein an injury incurred while commuting between a worker's home and workplace is non-compensable because the risks taken while commuting are exactly the same as they are for the general public.
However, the court noted that Airtran incurs “deliberate and substantial payments for the expense of travel” for its employees to fly to their hub in Atlanta. More than 70% of Airtran’s pilots live outside of Georgia and many of them participate in an Airtran-backed program with the Transportation Security Administration (TSA) to provide free or reduced fare rates among all airline pilots on any airline’s flights.
The court ruled that Airtran’s participation in the TSA’s inter-airline reduced rate service for pilots is an inducement by Airtran to attract workers and encourages workers to fly on their commutes to work. Thus, Airtran is liable for its employees’ commutes as it advances an objective of Airtran—gaining interest from potential employees.
This raises liability issues when it comes to an employer making travel arrangements for an employee and whether the employer benefits from these arrangements and is therefore liable for any harm an employee may endure. Are government agencies, such as schools or public offices, liable for employees who receive public transportation vouchers because traffic reduction and timely commutes are objectives of the government? What about UPS, which has a large non-resident workforce in Louisville?
These and other questions will surely come up in the wake of the Kentucky Supreme Court’s decision in the Fortney case.