August 2010 Archives

August 26, 2010

Kentucky's Highest Court Awards Benefits to Commuting Pilot's Widow

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.

August 21, 2010

Indiana Supreme Court Upholds Attorneys Fees In Medical Malpractice Case

Medical Malpractice lawyers are pleased with the August 18, 2010 opinion by the Court of Appeals of Indiana upholding the trial court's award of attorneys' fees and costs in a case brought under the Adult Wrongful Death Act ("AWDA"). The opinion of Hematology -Oncology of Indiana v. Fruits was written by the Honorable Judge May.

The appellant challenged whether the AWDA allowed for reasonable attorneys fees claiming that the "because the "express terms" of the AWDA "do not permit a claim for attorneys fees or litigation expenses." Hematology -Oncology of Indiana v. Fruits, Case No. 449A05-0910-CV-55649A05-0910-CV-556 (citing Br. of the Appellant, Hematology-Oncology of Indiana, P.C. (hereinafter "Hematology Br.") at 7.) The Appellate Court disagreed.

According to Judge May, the pertinent part of the AWDA, Ind. Code ยง 34-23-1-1, does not limit recovery to only damages for grief and punitive damages. Rather, the law reads that in addition to damages for grief and punitive damages, a plaintiff could be awarded damages which "may include but are not limited to the following." While attorneys' fees and costs are not enumerated in the statute, the statute does not limit recovery to only listed items of damages.

If you or a loved one has suffered because of negligent acts of a health care provider, it is important for you to speak with a medical malpractice attorney. A lawyer will be in the best position to evaluate what damages you are entitled to.

August 16, 2010

Big Changes To Trucking Hours

Trucking accident attorneys are anxious about the proposed changes to the truck driver hours of service rules which were sent to the White House for review on July 26, 2010. These proposed changes would limit truck driving hours to ten in a day, a change from the current eleven hour rule. The current limits have been in place since 2003. The Federal Motor Carrier Safety Administration will likely make a final decision about trucking hours by this time next year.


Currently, truck drivers are allowed to drive a total of eleven hours each day, but are allowed to work a total of fourteen hours daily including loading, unloading and waiting following ten hours required off-duty time. The new proposed rules would allow drivers to work a total of twelve hours but limit driving time to only ten hours.

Consumer advocates have been pushing for even shorter driving times with some groups, such as Public Citizen, pushing for limits as low as eight hours. The rationale, of course, is that limiting truck driving hours will reduce extremely dangerous accidents.

If you have been injured in a trucking accident, a seasoned attorney should evaluate whether the driver was on the road for too long.