Illinois Supreme Bars Civil Asbestos Action Under Workers’ Compensation Act Exclusive Remedy Provision
On November 4, 2015, the Illinois Supreme Court issued its opinion in the matter of Folta v. Ferro Engineering, 2015 IL 118070 (2015), holding that an employee is barred from bringing an action in civil court by the exclusive remedy provisions of the Workers’ Compensation Act (820 ILCS 305/1 et seq.) and the Workers’ Occupational Diseases Act (820 ILCS 310/1 et seq.) (hereinafter “the Acts”), when the employee’s injury or disease first manifests after the expiration of certain time limitations under those acts. For employers and employees involved in asbestos litigation, it is advisable to become familiar with the Acts as well as the Court’s ruling in Folta in order to monitor its effect on future litigation and legislation.
Exclusivity Provisions of the Acts
The Workers’ Occupational Diseases Act provides for compensation for diseases arising out of, and in the course of, employment. 820 ILCS 310/1(d). That Act is modeled after and designed to complement the Workers’ Compensation Act, which provides financial protection for accidental injuries arising out of, and in the course of, employment. 820 ILCS 305/1(d). In exchange for a system of no-fault liability upon the employer, the employee is subject to statutory limitations on recovery for injuries and occupational diseases arising out of and in the course of employment. Accordingly both Acts contain an exclusive remedy provision whereby the employer’s liability under the Acts shall be exclusive and in place of any and all other civil liability. Therefore, Illinois law is clear that an employee must seek compensation from the Worker’s Compensation Commission for injuries and diseases that arise out of employment and is accordingly barred by the exclusivity provisions of the Acts from pursuing any other civil claims. However, the exclusivity provisions of the Acts do not apply when the injury or disease (1) was not accidental; (2) did not arise out of employment; (3) was not received during the course of employment; or (4) is not compensable. See Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 467 (1990).
Statute of Repose under the Acts
The Acts also contain provisions that serve as a statute of repose and create an absolute bar on the right of an employee to bring a claim after a defined period of time. In cases of injury or disability caused by asbestos exposure a claim must be filed within twenty-five years after the employee was exposed. See 820 ILCS 310/6(c) and 820 ILCS 305/6(d). Further, in cases of death occurring within twenty-five years from the last exposure to asbestos, a claim must be filed within three years of death. See 820 ILCS 310/6(c). With these provisions, the legislature provided a definitive time period within which all occupational disease claims arising from asbestos exposure must be brought.
Folta v. Ferro Engineering
James Folta filed a complaint against Ferro Engineering in the Circuit Court of Cook County, Illinois claiming exposure to asbestos during his employment at Ferro Engineering from 1966 to 1970. Forty-one years later, in May 2011, he was diagnosed with mesothelioma. At the time of his diagnosis and filing of his civil law suit, any potential workers’ compensation claim was barred by the Act’s twenty-five year statute of repose and the three year statute of repose under the Worker’s Occupational Diseases Act.
Defendant, Ferro Engineering, filed a motion to dismiss plaintiff’s counts, pointing to the exclusive remedy provisions included in the Acts. The motion to dismiss was granted by the trial court which found that the cause of action was time barred because plaintiff did not file his claim before the prescribed time limitation under the Acts expired. The Circuit Court later denied plaintiff’s motion to reconsider the court’s decision and the plaintiff appealed. The appellate court reversed and remanded, concluding that the term “compensable” must relate to the ability to recover under the Acts. The appellate court reasoned that because plaintiff could not recover under the Acts, his claim was not compensable and thus met the fourth exception to the exclusivity provisions of the Acts. Defendant Ferro Engineering filed a petition for leave to appeal.
Illinois Supreme Court’s Ruling
The issue before the Illinois Supreme Court was whether the exclusive remedy provisions of the Acts bar an employee’s cause of action against an employer to recover damages for a disease resulting from asbestos exposure arising from the employment, even though no compensation is available under those acts due to statutory time limits. Here, the plaintiff did not dispute that his asbestos exposure resulting in mesothelioma was accidental and arose out of and during the course of his employment. Rather, plaintiff argued that under the fourth exception to the exclusivity provisions of the Acts, his injury or disease was “non-compensable” and thereby equated the term “compensable” with the possibility to recover benefits. Plaintiff contended that through no fault of his own, his injury was not compensable because he never had an opportunity to recover any benefits under the Acts as they were time-barred before his disease manifested. Defendant, on the other hand, argued that whether an injury is compensable is defined by the scope of the Act’s coverage and not by the particular employee’s ability to recover benefits.
In its ruling, the Illinois Supreme Court clarified the meaning of “not compensable.” The Court recognized that the purpose of a repose period is to terminate the possibility of liability after a defined period of time. By enacting the provisions of the Acts, the Illinois General Assembly intended to provide a definitive time period within which all occupational disease claims arising from asbestos exposure must be brought. The Court found that in this case, because plaintiff’s last employment exposure to asbestos was in 1970, the 25-year period of repose had long since expired.
The Court chose not to extend the scope of “not compensable” to allow for common-law actions under the circumstances in this case. The Court stated:
"[T]o construe the scope of the exclusive remedy provisions to allow for a common-law action under these circumstances 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." "Further, this interpretation would directly contradict the plain language of the exclusive remedy provision which provides that the employer's liability is 'exclusive and in place of any and all other civil liability whatsoever, at common law or otherwise.'"
The Court recognized the harsh result for plaintiffs (employees) in asbestos matters, but stated that “given the nature of the injury” and the “current medical knowledge about asbestos exposure” the balance between the parties in this litigation should be addressed by the legislature, not the judiciary. The Court explained that it is not their “role to inject a compromise but, rather, to interpret the acts as written.”
The Court further reasoned that just because plaintiff did not have a right to recovery under the Acts does not mean that the Acts have no application or that plaintiff was then free to bring an action in civil court. Rather, the Court found that “where the injury is the type of work-related injury within the purview of the acts, the employer’s liability is governed exclusively by the provisions of those acts.” Accordingly, the Court held that plaintiff’s action against his employer, defendant Ferro Engineering, was barred by the exclusive remedy provisions of the Acts.
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