The Going and Coming Rule and the Tragedy of Flight 5191: Fortney v. AirTran Airways, Inc.

Fortney v. AirTran Airways, Inc., 2009-SC-000429-WC (Ky. 2010). Whether an employer uses transportation or transportation expense as an inducement for an employee to accept or continue employment is material to supporting compensability, particularly when the journey is sizeable and when the employer pays all or substantially all of the expense.

On Sunday, August 27, 2006, 49 of the 50 people aboard Comair Flight 5191 died when the plane crashed after taking off from the wrong runway at Blue Grass Airport in Lexington, Kentucky. Clarence Fortney, an employee of AirTran Airways was on that flight. Fortney, who lived in Lexington, Kentucky but worked for AirTran in Atlanta, was flying to work via another carrier (Comair) under a reciprocal agreement (AirTran did not fly into nor out of Kentucky). Even though the fatality occurred while Fortney was traveling to work, his estate argued that the death should be deemed work-related under the “convenience to the employer” doctrine, while AirTran argued that under the “benefit to the employer” doctrine, it should prevail as it was Mr. Fortney who benefited from its agreement with Comair regarding transportation to and from his workplace, not AirTran.

The ALJ deemed the injury non-compensable finding it was Fortney, not AirTran who received the benefit of Fortney’s traveling from Lexington to Atlanta, holding:

“. . . [T]he providing of free or reduced fare flights on other airlines through the Reciprocal Jump-seat Travel Agreement and Reduce Fare Travel Agreement was a benefit AirTran provided to its employees to allow them to live where they chose. The providing of this benefit to the employees was a burden on AirTran, as the company was required to be familiar with and follow the tax law of numerous states when employees chose to live in other states and make use of the free or reduced fare flights to commute to work.”

The Workers’ Compensation Board reversed, determining that Fortney’s claim was compensable under the benefit to the employer/employer convenience exception to the going-and-coming rule.

The Court of Appeals reversed the Board, finding that the facts did not fall under the employer convenience doctrine since Fortney benefited from the reciprocal jump-seat agreement by being able to live wherever he chose. AirTran Airways, Inc. v. Fortney, No. 2008-CA-001223-WC. In short, the Court of Appeals held: “Mr. Fortney was going to his workplace when the accident occurred. It would have been no different had he had (sic) been driving. Thus, the ‘going and coming’ rule applies.” It further noted, “AirTran . . . could have required him to move to Atlanta. Clearly, the agreement benefited Mr. Fortney, not AirTran.”

In a 5 to 2 decision, the Kentucky Supreme Court reversed the Court of Appeals finding that the facts did indeed fall under the service/benefit to the employer exception. The Court reasoned that “the fact that an employer uses transportation or transportation expense as an inducement to accept or continue employment is material to supporting compensability, particularly when the journey is sizeable and when the employer pays all or substantially all of the expense.”

The Court explained even if the travel inducement benefitted the worker but placed a financial burden on the employer, the inducement still benefitted the employer when its purpose was accomplished. As the Court observed, “An employer is unlikely to provide such an inducement unless it views the resulting benefit as outweighing the burden.”

The Court concluded the facts of Fortney’s case compelled the legal conclusion “that it was an inducement to Fortney to accept the employment and that it benefitted AirTran by accomplishing its purpose.” The arrangement thus brought the travel between Lexington and Atlanta within the course of Fortney’s employment and his death which occurred while making such a trip was work-related.

COMMENT: The nature of Fortney’s travel to and from work was not as directly analogous to driving one’s car to and from work as the Court of Appeals reasoned. The Supreme Court made a more direct and appropriate analogy to the body of law involving work injuries incurred as a result of an employee’s use of a company vehicle or in performance of duties in the course of employment yet off the employer’s premises. It also found Larson’s Workers’ Compensation Law, § 14.0614.07 (2009) particularly instructive, and it was the concept of “transportation expense as inducement” which was key in the Court’s ruling.

© Copyright 2010 by Roland Legal PLLC. Reprinted with permission.