In a case of first impression, an Illinois Appellate Court recently allowed a plaintiff to pursue asbestos personal injury claims against his employer, finding that the plaintiff was not limited to seeking redress under Illinois' workers' compensation laws. In the matter of Folta v. Ferro Engineering, the plaintiff was allegedly exposed to asbestos while employed at a plant owned by defendant between 1966 and 1970. Forty-one years later, plaintiff was diagnosed with mesothelioma. By this time, plaintiff's workers' compensation claim was time-barred by the 25-year statute of repose for asbestos-related injuries under Illinois' Workers' Compensation Act and the three-year statute of repose for asbestos-related diseases under Illinois' Workers' Occupational Diseases Act. The trial court granted the employer's motion to dismiss, finding that plaintiff's claims were in fact time-barred.

On appeal, plaintiff argued that because his injuries were not otherwise compensable under the Workers' Compensation Act and/or Workers' Occupational Diseases Act, the exlusivity provisions of those statutes should not operate as a bar to his personal injury claims.  The appellate court agreed, finding that since plaintiff was unable to recover under Illinois' regulatory scheme, there was no risk of double recovery and/or excessive litigation. The appellate court therefore reversed the trial court's dismissal of plaintiff's claim and remanded the case back to the trial court.

Interestingly, what appears to be missing from the appellate court's analysis is any discussion concerning the rationale behind Illinois workers' compensation regulatory scheme (to provide employers with some degree of certainty with respect to the nature and extent of an employee's compensation in exchange for the employee being assured of compensation while avoiding the cost, delay and uncertainty of litigation).  Additionally, the court's decision would seem to implicitly incorporate a discovery rule into Illinois' statute of repose.