posted on Saturday, November 19, 2005 8:11 AM
by
Rod Satterwhite
Friends, Romans, Countrymen, lend me your . . .
You couldn't make this one up if you tried.
The facts: employee signs an employment contract accepting a two-year assignment to work in Manila; employee arrives in Manila and stays in a hotel while searching for an apartment for himself and his family; four days after his arrival, employee exits a restaurant and is suddenly kidnapped by three men who hold him hostage for three weeks, chain him to the floor, attempt to hang him, and torture him; the kidnappers seek an undisclosed amount of ransom from the employer; employer does not pay ransom until it receives a videotape (read Proof of Life) showing the kidnappers cutting off part of the plaintiff’s ear (graphic, but true).
The case: slightly maimed, and no doubt, emotionally distressed, the employee makes his way to a court room halfway around the globe and sues his employer - in tort. The employer, not surprisingly, raised as a defense the language of the contract the employee had signed, which stated that workers’ compensation insurance would provide the exclusive remedy for injuries arising out of and in the course of his employment. In the past, D.C. courts have adopted the “coming and going” rule, which provides that employee injuries sustained while en route to or from work are not in the course of employment and therefore are not compensable under the Workers’ Compensation Act. In this case the employer unsuccessfully argued that the plaintiff fell underneath an exception to the “coming and going” rule called the “traveling-employee” exception. Under this exception, employees injured while engaged in continuous travel because of the demands of the job are covered by workers’ compensation. The Court of Appeals, however, found that the “traveling-employee” exception did not apply in the instant case. Noting that the employer was unable to cite to any authority supporting the argument that an employee is converted into a “traveling-employee” because he starts a new job at a fixed out-of-state location, the Court stated that its decision reflects “the fact that the traveling employee exception cannot be used to bypass the jurisdictional limits of state workers’ compensation laws.”
The outcome: the Court of Appeals allowed the employee's claims to proceed.
My opinion (not that you asked for it): Not completely clear. There's no doubt the employee's plight evokes sympathy, even though he was apparently held by kidnappers of questionably competence who "tried to hang him" but for some reason were unable to do so. Nevertheless, the employer here appropriately contracted to provide for insurance to address workplace injuries. Even though this is not the typical workplace injury, the law should allow employers to manage their risks. Here, those efforts were rejected, essentially leaving the employer responsible for the actions of a third party it could not possibly predict or control.
Ali Kahn v. Parsons Global Services Ltd., D.C. Cir., No. 04-7162, 11/15/05