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Keefe: 7th Circuit Botches Traveling Employee Concept

By Eugene Keefe

Tuesday, February 13, 2018 | 714 | 0 | min read

A plaintiff worked for Etihad Airways, a publicly owned airline owned and operated by the government of the United Arab Emirates.

Eugene Keefe

Eugene Keefe

In October 2013, he was a crew member on a flight from Abu Dhabi to Chicago. When the plane touched down, the employer arranged for the four-member crew to spend the night at The Westin in downtown Chicago.

At the hotel, the crew started drinking. They shared cocktails before dinner, then continued drinking during dinner. One member of the crew became intoxicated and started ranting or otherwise carrying on about how he didn’t like Americans or British citizens. As the evening wore on, this wayward crew member pretended to choke the plaintiff, a British citizen, to emphasize this somewhat childish and fairly stupid point.

At the end of the meal, the wayward and intoxicated crew member basically ditched the other workers to “dine and dash.” He left without his coat or contributing to paying his share of the tab. The remaining crew members settled the restaurant tab, and plaintiff took the departed crew member’s coat to give it back to him when possible.

Later the same evening, the wayward coworker knocked on the plaintiff’s hotel door. Plaintiff opened the door, thinking the inebriated coworker was there to apologize for his poor manners, maybe kick in a couple of bucks toward dinner and collect his coat. Instead, without any warning, the drunken crew member blasted the plaintiff on the head and leg with a bronze hotel decoration. At the same time, the inebriated coworkers was hurling epithets about the plaintiff’s British nationality and threatened his life.

Plaintiff defended himself and eluded the drunken coworker, and went to the hotel lobby, in tattered shape. He was taken to Northwestern Memorial Hospital, where he was treated for a head and leg trauma, along with a nasty scalp laceration. The plaintiff missed almost three months from work during recovery.

Back at the hotel, the drunken coworker was arrested and charged with battery. The wayward drunk posted bond on Oct. 14 but then disappeared, violated the terms of his bond and did not return to the U.S. to face criminal charges.

Plaintiff sued the miscreant coworker, his employer and the hotel. According to the plaintiff’s complaint, Etihad Airways asked the wayward attacker to resign. He did so but later started working with another Etihad affiliate called Jet Airways.

In 2015, the plaintiff filed a complaint in the U.S. District Court for the Northern District of Illinois, alleging negligence by the attacker along with Etihad Airways, Starwood Hotels & Resorts, LaSalle Hotel Properties, and Dublin Bar and Grill. Plaintiff alleged his employer Etihad Airways knew the attacker had a history of issues with alcohol and violence but kept him because of nepotistic connections at the airline.

The plaintiff also accused Etihad of crafting a plan “to get both the attacker and plaintiff out of the United States as soon as possible” after the unhappy incident. Plaintiff sued Etihad Airways for negligent “retention,” common-law negligence, and willful and wanton conduct. The plaintiff also sued his attacker for negligence, and willful and wanton conduct.

On April 7, 2017, the U.S. District Court for the Northern District of Illinois dismissed all of the plaintiff’s claims. The federal judge ruled that if the plaintiff wanted a remedy and/or compensation for this injury, he would need to seek it through the Illinois Workers’ Compensation Commission.

Last Wednesday, the federal 7th Circuit Court of Appeals upheld the dismissal. It rejected the plaintiff’s argument that the Foreign Sovereign Immunities Act, which allows plaintiffs to sue foreign states, pre-empts the Illinois Workers’ Compensation Act. The decision noted that Etihad Airways was considered a “foreign state” because of its affiliation with the government of the UAE.

The federal court ruled that the plaintiff misinterpreted the FSIA. The court ruled that in passing the FSIA in 1976, Congress intended to prevent the executive branch from conferring immunity on foreign states by granting the power to make immunity determinations to the judiciary only. Once the decision on immunity is made, other laws governing the suit’s relevance should apply.

The appellate ruling did not consider the plaintiff’s argument that Etihad Airlines did not meet the definition of an employer under the state Workers' Compensation Act, because the plaintiff had not raised it at the trial court level. If the plaintiff had raised it and the District Court had considered the argument, the case might have gone a different way.

We note that the comp guru Marc Perper was quoted as saying, “What jumped out at me right away about this decision was the argument that the plaintiff waived, which was whether his employer met the definition of an employer under our Workers’ Compensation Act. That may have been a legitimate argument." 

Section 1A of the IWCA defines “employer,” and “if you look at it, a foreign government is not listed among the entities that meet the definition of an employer,” Perper said. I agree strongly with Marc.

My personal legal/technical issue with the ruling is based on a very controversial concept in Illinois workers’ comp law. I don’t agree at all with the federal appellate court’s interpretation of it. I say this with all due respect to the members of the 7th Circuit Court of Appeals. The ruling says:

[Plaintiff]’s injuries arose out of his employment. The question of whether an injury arises out of the employment of traveling employees is answered differently than for other employees. Kertis v. Ill. Workers’ Comp. Comm’n, 991 N.E.2d 868, 873 (Ill. Ct. App. 2013). “An injury sustained by a traveling employee” — one whose work requires him to travel away from his employer’s office and for whom travel is an essential element of the employment — “arises out of his employment if he was injured while engaging in conduct that was reasonable and foreseeable.” Id. [Plaintiff], an Etihad pilot, was unquestionably a traveling employee. He sustained his injury while in his employer-paid hotel room on a layover when his fellow crew member knocked on his door. That a coworker would knock on [plaintiff]s door, and that [plaintiff] would open the door, while the crew was staying at the hotel is both reasonable and foreseeable.

[Plaintiff] conceded that he was injured during the course of his employment. (Appellant’s Br. at 34–35; R. 111 at 11–12.)

Please note the legal term “traveling employee” does not appear, nor is it defined, in the Illinois Workers' Compensation Act or the Rules Governing Practice Before the Illinois Workers' Compensation Commission.

I don’t agree that the Kertis ruling relied on by the federal appellate court states “black letter” WC law or represents well-settled WC law in this state. In my view, the Kertis ruling is completely an outlier that stands by itself. The much more cogent and applicable “traveling employee” ruling is from the Illinois Supreme Court in Venture-Newberg-Perini, Stone & Webster v. Ill. Workers’ Compensation Commission.

In that ruling, our highest state court rejected the impossible-to-understand “traveling employee” concept. In my view, if the traveling employee concept ever becomes law in Illinois, an administrator going across the street to get a pack of gum is globally covered for anything he “reasonably” does.

I also disagree that the plaintiff can “concede” that he was in the course of employment; that is an issue that has to be proven in any WC claim. The employee doesn’t “concede” it. And whatever he “conceded,” he was wrong: There is no chance, none, that this man was in the course of employment when randomly attacked by a drunken goof.

Further, I don’t at all agree that a bunch of drunk airline crew members who get into a stupid after-hours fight over just about nothing should be entitled to WC benefits. They weren’t fighting about anything remotely related to their work duties, conditions or the employer.

I don’t feel an employer should have any liability at all for injuries that occur while the workers are not on the clock or otherwise being paid and aren't doing anything in furtherance of their employer. I also cannot imagine how an employer should be able to expect one worker to spontaneously and cowardly attack another worker.

We will have to see if/when the injured worker files an Illinois claim. I don’t personally feel that the arbitrator or IWCC are legally bound by this federal ruling.

Eugene Keefe is a founding partner of Keefe, Campbell, Biery and Associates, a Chicago-based workers' compensation defense firm. This column was reprinted with his permission from the firm's client newsletter.


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