Khan v. Parsons Global Services, Ltd.

• Decision Date: 15 November 2005
• Docket Number: No. 04-7162.,04-7162.
• Citation: 428 F.3d 1079
• Parties: Azhar Ali KHAN and Asma Azhar Khan, Appellants v. PARSONS GLOBAL SERVICES, LTD., et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

428 F.3d 1079

Azhar Ali KHAN and Asma Azhar Khan, Appellants v. PARSONS GLOBAL SERVICES, LTD., et al., Appellees.

No. 04-7162.

United States Court of Appeals, District of Columbia Circuit.

Argued October 6, 2005.

Decided November 15, 2005.

Appeal from the United States District Court for the District of Columbia (No. 03cv01574).

Cyril V. Smith argued the cause for appellants. With him on the briefs was Elaine Charlson Bredehoft.

Eugene Scalia argued the cause for appellees. With him on the brief was Tanya Axenson Macallair.

Before: GINSBURG, Chief Judge, and ROGERS and BROWN, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge.

To recover for injuries resulting from his kidnapping, Azhar Ali Khan and his wife, Asma Azhar Khan, sued Parsons Global Services Limited ("PGSL") and its affiliates and agents (together, "Parsons") for negligence and intentional infliction of emotional distress. The district court granted summary judgment to Parsons, ruling that the Khans' tort claims were barred by Mr. Khan's contractual agreement with PGSL to accept workers' compensation insurance as the exclusive remedy for injuries arising out of and in the course of his employment. On appeal, the Khans contend that the district court abused its discretion by granting summary judgment without permitting discovery requested under Fed.R.Civ.P. 56(f). They maintain that abuse of discretion is manifest where a motion for summary judgment is filed at the outset of a case prior to any discovery, key facts are in the defendant's exclusive possession, and the plaintiffs submit detailed affidavits describing the discovery they seek. Whether this is so depends principally on whether, as the Khans also contend, the district court erred as a matter of law in interpreting the D.C. Workers' Compensation Act ("WCA"), D.C.Code Ann. §§ 32-1501 et seq., as it was incorporated in Mr. Khan's employment contract. Because Parsons considers Mr. Khan to have been a "traveling employee" at the time of his kidnapping and because it regards his injuries to have accrued due to the employment relationship, Parsons maintains that workers' compensation is Mr. Khan's sole avenue of relief. Because the traveling employee exception under the WCA, as interpreted by the District of Columbia Court of Appeals, is a narrow exception to the exclusion of coverage for injuries suffered while away from an employer's premises, we reverse and remand the case for further proceedings.

I.

In March 2001, Azhar Ali Khan, a British citizen, signed an employment contract (the "Assignment Agreement" or "agreement") with PGSL, which has its principal place of business in the District of Columbia. Mr. Khan agreed to work as an accountant in Manila, the Philippines, for a term of two years. At that time, Mr. Khan, Mrs. Khan, and their children were living in Kuala Lumpur, Malaysia, where Mr. Khan worked for Parsons. The agreement noted that Mrs. Khan and the children would live with Mr. Khan in Manila, and provided for a housing allowance as well as health benefits. The agreement contained a clause requiring Mr. Khan to accept workers' compensation "as full and exclusive compensation for any compensable bodily injury, occupational disease, or death resulting therefrom, arising out of and in the course of Employee's employment hereunder," (emphasis added), and a clause requiring him to arbitrate in Geneva, Switzerland, under the laws of the State of California, any claims "aris[ing] out of or in connection with" his employment. Mr. Khan departed for Manila on Tuesday, May 1, 2001, obtained lodging at a hotel, and had intended to look for an apartment on Sunday, May 6, 2001.

On Saturday evening, May 5, a day when PGSL's Manila offices were closed, Mr. Khan dined alone, paying cash for his meal in a local restaurant. As he returned to his hotel, he was abducted by three men. The kidnappers held Mr. Khan for approximately three weeks, during which time they chained him to the floor, attempted to hang him, and tortured him in other ways. During this period, the complaint alleges, Parsons officials promised Mrs. Khan that Parsons would pay the ransom demanded by the kidnappers; they also, however, took the position that paying the ransom would undercut Parsons' long-term interests by providing an incentive to kidnap Parsons employees in the future. On May 25, 2001, the kidnappers cut off a portion of Mr. Khan's ear and sent the videotape of the event to Parsons. The next day, Mr. Khan was released after Parsons paid the ransom.

Mr. and Mrs. Khan sued Parsons, alleging that PGSL, various affiliated corporate entities (PGSL's parent company, Parsons Corp., and other Parsons Corp. subsidiaries), and several agents of the Parsons entities were negligent and liable for the intentional infliction of emotional distress. The alleged torts were improperly conducting negotiations with the kidnappers; delaying payment of the demanded ransom; refusing to provide Mrs. Khan with information about the kidnapping, including the amount of the ransom demand; telling her "lies" and "inconsistent, illogical, negligent" explanations for the actions taken; and forcing her to communicate with the kidnappers and to give them false promises that payment of the ransom was forthcoming. According to the complaint, if Mrs. Khan had been aware of the kidnappers' demands, she would have been able to obtain the money to free Mr. Khan, which could have prevented his torture and mutilation. Mr. Khan also alleged that Parsons coerced him into employment negotiations after his ordeal, required him to resume work "only a few weeks after his release," threatened to stop paying his housing allowance, medical expenses, and other allowances, and threatened to transfer him to Karachi, Pakistan, despite the fact that Mr. Khan would not "feel safe" there.

The complaint was filed in D.C. Superior Court on May 20, 2003. On July 22, 2003, Parsons removed the case to the federal district court pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, implemented in 9 U.S.C. § 201 et seq., which provides federal jurisdiction in matters involving an arbitration agreement arising out of a commercial relationship where one party to the agreement is not a United States citizen. 9 U.S.C. §§ 202-203. The notice of removal included the Assignment Agreement as an attachment. A week later, Parsons filed a motion to dismiss, or alternatively for summary judgment or to compel arbitration, arguing that Mr. Khan was "effectively still in travel status" at the time of his kidnapping. The Khans filed an opposition, seeking denial outright because, in part, the "horrifying injury and acts of deliberate torture . . . neither arose from, nor occurred in the course of, Mr. Khan's work for [PGSL]," and alternatively seeking the motion's denial "pending plaintiffs' opportunity to take discovery under Rule 56(f)." Pls.' Mem. Opp'n 1-2. They attached to their opposition declarations describing the discovery sought pursuant to Rule 56(f) as well as a statement describing material facts in dispute pursuant to L.R. 7.1(H) and 56.1. The district court granted summary judgment to Parsons and denied the Khans' motion for reconsideration. The Khans appeal. Our review of the grant of summary judgment is de novo, Universal City Studios LLLP v. Peters, 402 F.3d 1238, 1241 (D.C.Cir.2005), accepting the factual allegations in the complaint as true, Information Handling Services, Inc. v. Defense Automated Printing Services, 338 F.3d 1024, 1029 (D.C.Cir.2003). Our review of the decision to grant summary judgment instead of permitting discovery under Rule 56(f) is reviewed for abuse of discretion. Paquin v. Fed. Nat'l Mortgage Ass'n, 119 F.3d 23, 28 (D.C.Cir.1997).

II.

The Assignment Agreement, which settles on workers' compensation as the "full and exclusive compensation for any compensable bodily injury, occupational disease, or death resulting therefrom, arising out of and in the course of Employee's employment hereunder," copies the standard phrasing of many workers' compensation statutes. See 1 ARTHUR LARSON & LEX K. LARSON, LARSON'S WORKERS' COMPENSATION § 3.01 (2002) (hereinafter "LARSON'S"). As the case comes to us, the parties agree that the WCA, which defines compensable injury in the same terms, controls the interpretation of the Assignment Agreement. In order to determine whether the district court abused its discretion by granting summary judgment before allowing the Khans to pursue requested discovery as contemplated by Rule 56(f), the court must first determine whether the district court's interpretation of the contractual bar reflected a proper construction of the WCA. Although it would not be unusual for this court to certify a "genuinely uncertain" question of District of Columbia law to the District of Columbia Court of Appeals, see Sturdza v. United Arab Emirates, 281 F.3d 1287, 1303 (D.C.Cir.2002); D.C.Code § 11-723(a) (2001), we conclude that the Court of Appeals has already provided the guidance necessary to resolve this point of law.

The WCA provides that workers' compensation is an employee's exclusive remedy against the employer for injuries "arising out of" and "in the course of" the employment. D.C.Code § 32-1501(12). The District of Columbia has adopted the "going and coming" rule. As explained by the District of Columbia Court of Appeals in Kolson v. Department of Employment Services, 699 A.2d 357, 359 (D.C.1997), "[t]he general rule [is] that the occurrence of employee injuries sustained off the work premise, while enroute to or from work, do not fall within the category of injuries in the course of employment." Id. at 359 (quoting 1 LARSON, THE LAW OF WORKMEN'S COMPENSATION § 15.00) (internal quotation marks omitted). The District of Columbia recognizes an exception to this rule for the "traveling employee," see, e.g., id. at 360, and it is the scope of...