In Folta v. Ferro Engineering, Ill.S.Ct. Docket No. 118070, Nov. 4, 2015, the Illinois Supreme Court reversed an Illinois Appellate Court decision and held that a personal injury and subsequent wrongful death suit brought on behalf of a former employee who died from mesothelioma 41 years after employment had ended is barred by the exclusive remedy provisions of the Illinois Workers’ Compensation Act (WCA, 820 ILCS 305/1 et seq.) and the Illinois Workers’ Occupational Diseases Act (WODA, 820 ILCS 310/1 et seq.).
James Folta (Folta) was employed at Ferro Engineering (Ferro) from 1966 to 1970. He claimed exposure to asbestos from his employment at Ferro. In May 2011, 41 years after his employment ended at Ferro, Folta was diagnosed with mesothelioma, primarily an asbestos-related illness. Subsequently, he filed suit against Ferro and 14 other defendants. He did not file a workers’ compensation action against Ferro.
Workers’ Compensation Exclusivity Provisions and the Application of the Statute of Repose
In Illinois, an employee who suffers an occupational disease such as mesothelioma can file an action against the employer under either the WCA or WODA. An action pursued under either act is limited by statute of repose. Specifically, WODA section 6(c) and WCA section 6(d) provide that an action under these Acts has to be brought within 25 years from the date of last exposure to the condition allegedly causing the disease. A further statute of repose under WODA for exposure to asbestos dust resulting in disease provided that there would be no compensation unless disablement from the dust occurs “within [three] years after the last day of the last exposure to the hazards of such disease.” 820 ILCS 310/1(f).
Lawsuits against an employer for an occupational disease injury under common law, as well as any other injury in the scope of employment, were precluded unless an employee could show one of four exceptions to the sole exclusive remedy of WCA or WODA: that the injury (1) was not accidental, (2) did not arise from the employee’s employment, (3) was not received during the course of employment or (4) was not compensable under the Act. Collier v. Wagner Castings, 81 Ill.2d 237, 241 (1980).
The Trial Court and Appellate Court Rulings
Ferro filed a motion for dismissal premised on the argument that Folta’s suit against Ferro was barred by the sole exclusive remedy provisions of the WCA and WODA. The Cook County motion judge granted Ferro’s motion to dismiss. The appellate court reversed and found that Folta’s injury was “quite literally not compensable” under the Act due to the fact that his injury did not manifest itself until more than 15 years after the statute of repose expired.
Illinois Supreme Court Decision
The issue before the Illinois Supreme Court was whether the “injury not compensable under the Act” exception applied to Folta’s injury. The Court interpreted the injury exception to only cover certain injuries incurred by an employee, such as recovery for emotional distress or other psychological injuries, where there was a question whether these injuries were covered under the Act. The Court noted that no prior Illinois case ever held that the inability of an employee to recover benefits under the Act provided a basis to permit an employee to file a common law action against his employer.
Following this analysis, the Court concluded that the inability of an employee to recover benefits for latent occupational diseases that were diagnosed after the expiration of the statutes of repose in either Act, though time-barred, were not to be considered “non-recoverable” as defined under the Acts, because the state legislature specifically considered the long latency periods for asbestos and other occupational diseases when it provided for a 25-year statute of repose. “The General Assembly intended to provide an absolute definitive time period within which all occupational disease claims arising from exposure must be brought.” (Emphasis added.) Further, the Court opined that allowing the type of recovery requested by Folta “would mean that the statute of repose would cease to serve its intended function, to extinguish the employer’s liability for a work-related injury at some definite time.”
The Court acknowledged that the enforcement of the repose period, as in the Folta case, led to a “harsh result” and barred recovery against the employer. This did not mean, however, as Folta claimed, that his injury was not compensable. The Court recognized that, despite Folta’s argument that he was left with no remedy to pursue a cause of action against his employer, Folta was not precluded from filing a lawsuit against 14 other defendants he claimed to be responsible for his mesothelioma.
The Court was also not persuaded by Folta’s argument that enforcement of the statute of repose in the WODA precluded any recovery for most mesothelioma claims by employees against their employers. The Court cited several appellate cases where injured employees or their dependents were able to recover benefits under the WCA or WODA for injuries from remote asbestos exposures leading to mesothelioma.
The Folta decision provides assurance to all employer defendants facing a common law suit from an employee claiming an occupational disease from their Illinois employment. Unless the injured employee can establish one of the other exceptions to WCA or WODA as being the sole exclusive remedy for proceeding against their employer, their case will be dismissed.
While employers were rarely defendants in asbestos litigation in Cook County prior to the Folta appellate decision, it has always been common for employers to find themselves defendants in Madison County asbestos cases brought by their Illinois employees. Employer defendants would invariably lose their sole exclusive remedy motions to dismiss because the court would find that the statute of repose under the WCA or WODA would bar the employee from recovering against the employer if the mesothelioma arose more than 25 years after the date of last exposure. As the WCA or WODA action was time-barred, and thus the “non-compensable under the Act” exception was established, Madison County courts permitted a common law action against the employer. The application of the Folta decision should lead to the dismissal of many employer defendants sued by their former Illinois employees in pending or future Madison County asbestos cases as well as other jurisdictions applying Illinois law.