On October 21, 2009, the Arkansas Court of Appeals issued an opinion allowing the estate of a deceased Arkansas employee to sue a fellow employee, who was also the pilot, for the death of the employee in an aircraft accident. The case, Honeysuckle v. Curtis H. Stout et al., arose out of the 2002 crash of a Model 114A Aero Commander in which the employee and the pilot, who was also the owner of the aircraft and the majority shareholder of the employer, were returning from a business trip on behalf of their employer.
The deceased employee’s estate initially submitted a workers’ compensation claim and received an award. The workers’ compensation commission determined that the injuries suffered by the deceased employee in the aircraft accident arose out of and in the course and scope of his employment. Interestingly, the pilot also received a workers’ compensation award based upon a similar determination that he too suffered injuries in the course and scope of his employment.
Subsequently the deceased employee’s estate sued the pilot for wrongful death alleging negligence in the operation and maintenance of the aircraft (the estate also sued the aircraft manufacturer and the manufacturers of certain component parts of the aircraft based upon a variety of theories). However, the claims against the pilot were remanded to the workers’ compensation commission and ultimately dismissed based upon a finding that the pilot was the deceased employee’s employer and, thus, the pilot was entitled to immunity under the workers’ compensation statute. (Most workers’ compensation statutes provide that the workers’ compensation system is, subject to several exceptions, the exclusive remedy for an employee’s claim against an employer and fellow employees.) The workers’ compensation commission also determined that even if the pilot were not the employer, he was carrying out the employer’s duty to provide a safe workplace which, the commission reasoned, was the aircraft at the time of the accident since the flight occurred during the course of the employment of the deceased employee and the pilot.
The deceased employee’s estate appealed the dismissal and the Court of Appeals reversed. The Court initially observed that the employer directed the deceased employee and pilot to travel to the meeting and the deceased employee and pilot were within the scope of their employment during the travel. However, the Court then noted that “the employer did not direct or control the means of travel, and more specifically, did not control or direct [the pilot] in maintaining and operating the aircraft with reasonable care and skill.” As a result, the Court concluded that the actions of the pilot for which the deceased employee seeks damages arise from the pilot’s failure to use reasonable care and skill in maintaining and operating the aircraft whose failure resulted in the employee’s death.
This case is not good news for aviation attorneys in Arkansas defending pilots (or their estates) against claims made by fellow employees. Not only is this a narrow interpretation of workers’ compensation immunity, but it also does not make sense, at least with respect to the pilot’s conduct during the flight. (The argument against immunity for maintenance the pilot may have performed on the aircraft, on the other hand, at least makes some sense as being outside the scope of employment.) I am not sure how both the deceased employee and the pilot could receive workers’ compensation awards for injuries arising out of an accident that the workers’ compensation commission determined occurred within the scope of their employment, but somehow the pilot’s operation of the flight is outside of that scope. Seems inconsistent to me.
If this case were decided in Minnesota, and in many other jurisdictions I suspect, the workers’ compensation commission’s decision would likely have been affirmed based upon a more expansive, and more rational, application of workers’ compensation immunity. Yet another factor for consideration when determining the pros and cons of a venue/forum for a lawsuit.