Court rules that widow of Comair crash victim should get benefits

bmusgrave@herald-leader.comJune 18, 2010 

FRANKFORT — The widow of a pilot who was a passenger on Comair Flight 5191 can seek workers' compensation payments because her husband was on his way to work when the plane crashed in August 2006, the state Supreme Court ruled Thursday.

The court, in a 5-2 decision, ruled in favor of Sarah Fortney, whose husband, Clarence Fortney, was a pilot for AirTran Airways.

Scott M. Miller, a Louisville lawyer who represents the Fortney family, said the ruling means an administrative law judge will be asked to determine how much compensation Fortney's estate and family will receive.

"Obviously, I am very happy for Sarah and her family," Miller said.

Clarence Fortney was one of 49 passengers killed on the airplane that took off from the wrong runway at Blue Grass Airport on Aug. 27, 2006.

AirTran had argued in court documents that Fortney's death was not work-related because he was simply commuting to work and was not on the clock. Moreover, AirTran had no control over the actions of Comair at the time of Fortney's death.

An administrative law judge earlier ruled that AirTran did not have to pay workers' compensation.

Lawyers for the Fortney family argued that it was AirTran's policy to allow pilots to live outside of its Atlanta hub and provide free or reduced air travel for those pilots so they could get to work.

"This was different than a typical case," Miller said. "The travel was so intertwined in his job. The employer provided the means for him to get to his job."

The high court, in its 10-page decision, agreed.

"His death was work-related because he was making such a trip when it occurred," the court ruled in a 5-2 decision that sends the case back to the administrative law judge for further proceedings.

Also Thursday, the Supreme Court publicly reprimanded a Florida lawyer for failing to follow Kentucky Bar Association regulations involving an advertisement for her services in the Lexington Herald-Leader shortly after the Comair Flight 5191 crash.

Debi Faye Chalik, a lawyer from Plantation, Fla., agreed to be publicly reprimanded for not paying a fee to the Kentucky Bar Association for review of a newspaper advertisement about her services.

Chalik faxed a copy of the advertisement to the bar association on the same day it was submitted to the newspaper, but she did not pay the fee until the following day, when she mailed the bar association a copy of the advertisement.

Chalik dropped the advertisement after one day after many people complained to the Herald-Leader about attorney advertisements related to the deadly crash.

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