Clarence Fortney made headlines four years after a tragic accident ended his life when the Kentucky Supreme Court found in favor of Fortney's wife. Fortney, a Kentucky resident, commuted to Georgia to perform his job as an airline pilot.
About ten times per month, Fortney would leave his Lexington home, board a Comair flight (Comair had a reciprocal arrangement with AirTran before the latter expanded to Kentucky) and arrive in time to pilot his assigned flights out of Atlanta. Fortney even split an Atlanta apartment with other commuter pilots for those workdays that required a brief stay-over.
Four years ago this Friday, Fortney was killed when the Comair Flight 5191 he caught in Lexington crashed upon takeoff.
Left to care for their minor son, Sarah Fortney filed for compensation benefits from her husband's company. AirTran refused to acknowledge liability, maintaining that Fortney was not acting within his scope of employment as an AirTran pilot at the time of his death.
The issue before the Kentucky Supreme Court hinged on whether Fortney's actions fell under the "going and coming" rule, a workers' compensation provision that insulates employer liability by deeming injuries arising from ordinary commuting risks as non-compensable.
Whether boarding a plane on your way into work is "ordinary" is a matter of perspective for AirTran pilots, 70% of whom reside in places other than Georgia. AirTran has no official residency policy.
AirTran argued that since it had no control over the operation of Comair's flights and Fortney benefitted personally from the air travel, his time spent in commute did not qualify for the rule's "direct service to the employer" exception.
An Administrative Law Judge (ALJ) initially agreed with AirTran, but the decision was reversed on appeal. The Kentucky Supreme Court confirmed that the ALJ's failure to consider whether AirTran's fitting the bill for Fortney's commute actually induced Fortney to take the AirTran job was reversible error. The Court determined that the low-cost travel arrangement benefitted Airtran by "accomplishing its purpose" of attracting employees.
Two dissenting judges questioned the teeth behind this "benefit". In any event, we are left to wonder whether the Court's ruling will induce current AirTran employees to start flying, rather than driving, to work.
If you or someone you love has been injured in Kentucky, you should contact an attorney to learn more about your rights.