Articles & Updates

Illinois Employer Alert: No Workers' Comp "Exclusivity Bar" to Civil Claims for Asbestos Exposure

by Ronald Hack

   Illinois Employers should be aware of a recent opinion from the Illinois Court of Appeals, First District, which held, in a case of first impression, that the “exclusivity provisions” of the Illinois Workers Compensation statutes do not bar civil claims for asbestos-related diseases, such as mesothelioma, brought by ex-employees (or their families for decedents) against their former employers which arose from asbestos exposures occurring many years before.

   In Folta v. Ferro Engineering, Cause No. 1-12-3217, 2014 Ill. App. (1st Dist.), 123219 (June 27, 2014), the Appellate Court reversed a trial court’s order of dismissal of the claims against a former employer.  Plaintiff James Folta was allegedly exposed to asbestos while an employee at a Ferro Engineering (“Ferro”) plant from 1966 to 1970.  Forty-one years later, Folta was diagnosed with peritoneal mesothelioma and brought suit in the Circuit Court of Cook County against Ferro and 14 other product supplier defendants.  Plaintiff sought relief against Ferro under theories of negligence, premises liability, intentional misconduct and fraud.

   Ferro moved to dismiss, arguing that Folta’s civil action was barred by the “exclusivity” provisions of the Illinois Workers Compensation Act (820 ILCS 305/5 et seq.) (West 2010) and the Workers Occupational Diseases Act (820 ILCS 310/11) (West 2010).  The Circuit Court granted Ferro’s motion to dismiss and the plaintiff appealed.

   After dealing with a standing issue, the Court addressed Ferro’s workers compensation “exclusivity” argument.  The plaintiff argued that his claim against the employer fell under an exception to the exclusivity provisions for “claims that are not compensable under the Act”. Plaintiff argued  that because the Illinois Workers Compensation Act contains a 25-year statute of repose, the last exposure to asbestos occurred over 40 years after he left employment with Ferro, and he was unable to seek a remedy under the Illinois Workers Compensation Act or the Illinois Workers’ Occupational Diseases Act, and therefore their “exclusivity” provisions did not apply to his civil claim.

   The Illinois Appellate Court noted that the purpose of the Illinois Workers Compensation Act was to provide financial protection for employees’ accidental injuries, and there were “exclusivity” provisions to prohibit employees from bringing common law actions against their employers. 

   However, the Court noted that there were four exceptions to the “exclusivity” bar, that: (1) the injury was not accidental; (2) the injury did not arise from his employment; (3) the injury was not received during the course of employment; or (4) the injury is “not compensable under the Act”, citing the prior Illinois Supreme Court case of Meerbey v. Marshall Field & Co., 139 Ill.2d 455 (1990). 

   After reviewing Meerbey and cases interpreting Meerbey, the Court held “plaintiff’s injury is quite literally not compensable under the Act, in that all possibility of recovery is foreclosed because of the nature of plaintiff’s injury” (Op. at p. 14).  The Court noted that the plaintiff was diagnosed with mesothelioma 41 years after leaving Ferro’s employment – long after the 25-year statue of repose contained in the Illinois Workers Compensation Act and the 3-year statute of repose in the Illinois Workers’ Occupational Disease Act.  The Court held “Through no fault of his own, plaintiff never had an opportunity to seek compensation under the Act” (Op. at p. 14).  The Court noted that certain other states (Montana and Pennsylvania) had similar interpretations of their statutes. Therefore, the Court held that plaintiff was allowed to bring a common law suit against his former employer. 

   This opinion by its terms not only applies to asbestos related mesothelioma but also to civil cases asbestos related lung cancers, chemical exposure cancers(such as benzene related leukemia) , and other long latency diseases. It can be anticipated that there will be an increased number of cases filed in the Circuit Courts brought by ex-employees against their former employers. This may include cases where an employee may have worked for as little as one summer as part-time employee. Plaintiffs’ attorneys already use television to advertise for possible plaintiffs. It can be assumed that such suits will only multiply in the future.