We recently addressed in this newsletter some recent developments in Missouri’s workers’ compensation law and how they may affect toxic tort claims against employers in that state. It was noted that while ostensibly geared towards providing clarity to all involved parties, these amendments had an unintended consequence of creating ambiguity as it pertained to claims for allegedly asbestos caused lung cancers, which comprise a significant portion of the claims filed in Missouri. This is because section 287.020.11 provided a list of diseases which qualified as “occupational” in nature for purposes of the Act, and explicitly listed mesothelioma, asbestosis, and silicosis, but made no mention of carcinomas of the lung. Thus, many Plaintiffs alleging lung cancer caused by occupational asbestos exposure began to argue that their disease did not qualify as occupational, entitling them to a civil remedy against their employer. Defendants, for their part, have contended that even prior to the changes, plaintiffs alleging an occupationally induced lung cancer had always been subject to the exclusive remedy provision by virtue of a separate section of the Workers Compensation Act, 287.067.6, which was left untouched by the 2014 Amendments.
Recent case law in Missouri has somewhat clarified the issue. In Ardrey v. 3M Company et al., case no. 1522-CC11178 in the City of St. Louis, defendant ACF Industries, LLC was alleged to have been liable for bystander and occupational exposures to asbestos that Ronald Ardrey sustained while in their employ as a welder. As a result of these exposures, Mr. Ardrey allegedly developed lung cancer, and brought a civil suit against ACF as well as numerous products manufacturers purportedly responsible for exposing him to airborne asbestos. ACF moved to dismiss on the grounds that Ardrey’s alleged disease was occupational in nature and thus fell within the purview of the workers compensation system, while Plaintiffs argued that because lung cancer was not listed in section 287.020.11, it was not a compensable occupational disease and he therefore was free to seek civil redress against his former employer.
In an order of September 29, 2016, the Circuit Court (Judge Joan Moriarty presiding) succinctly but unambiguously rejected the Ardreys’ argument, holding “the exclusivity provision of Chapter 287 does not apply only to “occupational diseases due to toxic exposure, but to any occupational disease…The Court finds that Plaintiff’s lung cancer is an occupational disease within the meaning of Chapter 287, and therefore is compensable against Plaintiff’s former employer ACF only in Workers’ Compensation.” Thus, there is very recent precedent in this venue for ruling that an allegedly asbestos-caused lung cancer is an occupational disease compensable in workers’ compensation alone. On the other hand, this trial court order is not binding on any other trial courts in Missouri that may consider the issue, and the appellate courts have yet to address it. Thus, claimants in other courts, or even those in the same venue with other judges, continue to raise this argument.
Ultimately, as the case law and effect of these amendments continues to evolve, both insurers and insureds will benefit from doing everything in their power to preserve their historic policies, as an inability to prove coverage remains the most surefire way to sabotage any exclusivity defense. Additionally, while the 2017 amendments concerning mesothelioma and the option to buy into an insurance fund are seemingly pro-employer to the extent they expand the available options and pool costs, the unfortunate reality is that many employers who may be affected by this are unaware that their products or premises ever contained asbestos or other airborne carcinogens, or believe it unlikely that any of their employees will ever develop a disease as rare as mesothelioma. Thus, it remains perilously easy to write off insurance for mesothelioma claims as an unnecessary expense, only to learn the hard way that even one civil case can carry with it millions of dollars in liability, potentially catastrophic to a small employer.
In sum, while Missouri remains an “exclusivity” state, toxic tort plaintiffs continue to argue for exceptions and to file civil suits against employers in an attempt to secure more or additional funds than the workers’ compensation system would provide. Employers who cannot prove that they carried workers’ compensation coverage, or who incorrectly assessed that participating in the mesothelioma fund was unnecessary, will remain subject to civil liability. Moreover, Plaintiffs may continue to argue that the Act as most recently amended does not explicitly apply to lung cancer claimants, and to argue that the Plaintiff’s final employer (or whomever employed them when their disease manifested), is the only one that can claim these protections. Like Pennsylvania and increasing others, Missouri’s efforts to legislate clarity into these claims has arguably created more questions than answers, and employers and their insurers must remain vigilant.
And broadly speaking, the same can be said for neighboring Illinois, where many of these same claims are often filed. Under Illinois law, an employee’s claim “against an employer for occupation disease-related injuries are ordinarily barred by the exclusivity provisions of the Workers' Compensation Act (WCA) and the Workers' Occupational Diseases Act (ODA).” Hartline v. Celotex Corp., 272 Ill.App.3d 952, 955, 651 N.E.2d 582, 584 (1st Dist. 1995). More recently in Folta v. Ferro Engineering, the Illinois Supreme Court discussed the WCA and ODA and found the Acts were “homologous” and “that cases that have construed the exclusivity provisions in the context of the Workers Compensation Act would also apply in the context of the Workers’ Occupation Diseases Act.” Id., at 122; see also Dur-Ite Co., v. Indus. Comm’n, 394 Ill. 338, 344; 68 N.E.2d 717, 720 (Ill. 1946).
Notably, Illinois’ Workers’ Compensation Act “provides financial protection for accidental injuries arising out of, and in the course of, employment.” Folta v. Ferro Eng’g, 43 N.E.3d 108, 112 (Ill. 2015). However, the Illinois Workers’ Compensation Act “does not [cover] claims for disease or resultant death as a result of exposure to asbestos,” as “[s]uch claims must be brought under the [Illinois] Occupational Diseases Act.” Westinghouse Airbrake Co. v. Indus. Comm’n, 715 N.E.2d 294, 300 (Ill. App. Ct. 1999). Thus, the Illinois Workers’ Occupational Diseases Act “provides compensation for [occupational] diseases arising out of, and in the course of, employment.” Folta 43 N.E.3d at 112. When applicable, it provides that its statutory remedies “shall serve as the employee’s exclusive remedy.” Id. Specifically, the Act states that “[t]here is no common law or statutory right to recover compensation or damages from the employer . . . other than for the compensation herein provided.” Id. Moreover, the Act stresses that “[t]he compensation herein provided for shall be the full, complete and only measure of the liability of the employer . . . and such employer’s liability . . . under this Act shall be exclusive and in place of any and all other civil liability whatsoever, at common law or otherwise.” Id. To demonstrate that a common law action is barred by this exclusive remedy provision of the Occupational Diseases Act in Illinois, an employer must show: (1) the plaintiff’s alleged injury arose from his employment with the defendant; (2) the alleged injury is compensable under the Act; (3) the plaintiff’s alleged injury arose out of and in the course of his employment with defendant; and (4) the alleged injury was not intentional. Id.
Generally speaking, the first prong of these requirements should be satisfied when an individual is or was a true employee of the defendant, defined as including “every person, firm, public or private corporation . . . who has any person in service or under any contract for hire, express or implied, oral or written.” 820 Ill. Comp. Stat. 310/1. Note, however, that this will not protect an employer against claims from independent contractors or those contractors’ employees, which as a practical matter comprise the vast majority of asbestos and other toxic tort plaintiffs, (e.g. a union craftsman working for a contractor).
The issue of what constitutes a compensable injury also appears to be settled law in this context, at least so far as most recently addressed by the Illinois Supreme Court. The Supreme Court of Illinois has held that “whether an injury is compensable is related to whether the injury categorically fits within the purview of the Act.” Folta, 43 N.E.3d at 114. The Act covers “occupational diseases,” which is defined to mean “disease[s] arising out of and in the course of the employment or which has become aggravated and rendered disabling as a result of the exposure of the employment.” 820 Ill. Comp. Stat. 310/1. Repeatedly, Illinois courts have held that latent asbestos-related diseases, such as mesothelioma, are such “occupational diseases.” See Folta, 43 N.E.3d 108; Owens Corning Fiberglas Corp., 555 N.E.2d 1233; H&H Plumbing Co., 525 N.E.2d 155.
Determining whether an injury arose in the course and scope of employment would similarly appear to be settled law, as the Supreme Court of Illinois has held that an alleged injury arose out of and in the course of employment where the plaintiff was diagnosed with an asbestos-related disease years after his alleged employment with and occupational exposure from the defendant. See Folta, 43 N.E.3d 108. Note, however, that this prong may be subject to interpretation insofar as some claimants will allege a hybrid of occupational and non-occupational exposures, claiming that their combined, cumulative effect caused the disease. They will characterize these exposures from any and all sources as “indivisible” and may use this to argue that an individual claimant’s disease was not fully caused in the course or scope of employment. While this has not been a major source of litigation at the trial or appellate court levels to date, it is nonetheless worth monitoring the language of plaintiffs’ complaints and other pleadings to see if they are using artful wording to try and raise allegations which will bring the claim outside the scope of the Act.
Finally, the Supreme Court of Illinois has stated that with respect to this prong of the test, among others, “where an injury is intentionally inflicted by an employer . . . it is outside the purview of the Act.” Courts in Illinois have stated that for this intentional tort exception to apply, “the employer must specifically intend that its actions would injure the employee.” See Glasgow v. Ass. Banc-Corp., 980 N.E.2d 785, 791 (2012). It has been held that alleging a defendant “knowingly, willfully, and purposely failed . . . to provide adequate security” was not enough to trigger this exception. Id. While this is a purposefully high standard and we are unaware of any plaintiffs that have successfully overcome it, it is worth noting that, as with prong number three, plaintiffs do routinely use artful pleading to allege intentional torts such as battery or infliction of distress aimed at pulling these claims outside the scope of the Act and into a potentially more lucrative civil arena.
Ultimately, as in Missouri, Illinois claimants are continuing to pursue toxic tort claims against employer defendants, despite the significant statutory and case law to suggest that these suits are improper. Still, a history of substantial verdicts for plaintiffs’ in these venues, as well as expedited trial settings and at times a favorable judiciary, give these venues an enduring appeal, incentivizing attorneys to take a flyer on claims against employers, hoping to defeat legislative prohibitions through artful pleading and the carving out of exceptions.
While we are unaware of significant successes in doing this, claiming the protection of the applicable laws – in both Illinois and Missouri – requires prompt preservation of the defense and careful pleadings and discovery by defense counsel, to minimize any risk of claims that the defense is inapplicable or has been waived. As an issue of subject matter jurisdiction, it is imperative to raise a workers’ compensation related defenses’ immediately, or at least contemporaneously with any personal jurisdiction related defense, if applicable. It is also important to have documentary evidence of an insured’s workers’ compensation insurance anytime these claims are raised, as a belief by plaintiffs’ attorneys that a workers’ compensation claim would be unfruitful is the number one source of delay in the granting of dismissals to employers in these suits. (The same is true for employment records and any other documents which establish an individual claimant’s employment by the insured.) By having this information well catalogued and readily available at the outset, the length and cost of any civil claims against the employer can be significantly shortened.
Finally, and as in any area of the law, close monitoring of legislative and common law developments is imperative, as the high volume of cases in both Missouri and Illinois may result in orders being issued at the trial court level which interpret and define the scope of these laws’ application in a particular venue, but which may fall under the radar on so-called “rocket dockets” with hundreds of hearings a week.