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IL: Employee’s Ability to Sue Employers outside of the Workers’ Compensation Act
In a case of first impression, the Illinois Appellate Court, First District, 5th Division recently reversed a lower court case and allowed a plaintiff to bring an asbestos lawsuit suit against a former employer outside of the Workers’ Compensation Act and Workers’ Occupational Diseases Act, due to the court’s finding a time-barred suit “not compensable under the Act” and an exception to the Acts’ exclusive remedy provisions. Folta v. Ferro Engineering, No. 1-12-3219, 2014 IL App (1st) 123219, at *1 (5th Div. Jun. 27, 2014).
The case, Folta v. Ferro Engineering, was brought by a plaintiff diagnosed with peritoneal mesothelioma forty-one years after leaving his job at Ferro Engineering. Id. at 2. The Plaintiff, James Folta, was barred by the statute of repose from bringing a claim under either Act, and instead brought suit in the circuit court of Cook County against Ferro Engineering and other defendants who supplied Ferro Engineering with items containing asbestos. Id. Mr. Folta worked for Ferro Engineering from 1966 to 1970, performing quality control tests on asbestos-containing products, which led to him inhaling asbestos dust. Mr. Folta alleged that Ferro Engineering was aware of the health risks and as a result of their actions, he developed mesothelioma. Id. at 5.
Ferro Engineering filed a motion to dismiss Plaintiff’s counts, pointing to the exclusive remedy provisions included in both the Workers’ Compensation Act and Workers’ Occupational Diseases Act, and was granted dismissal from the case by the trial court. Id. at 3. The Plaintiff filed an appeal, arguing that the exclusive remedy provision does not apply and that because his injury was “not compensable under the Act,”, it constituted an exception to the provision, which would allow him to bring a common-law action. Id. at 27, Meerbrey v. Marshall Field & Co., Inc., 139 Ill. 2d 455, 467 (1990). The Plaintiff argued, and the Appellate Court agreed, that the “not compensable under the Act” exception from Meerbrey should apply because through no fault of his own Plaintiff was not aware of his injury until it was time-barred by both Acts, and therefore could not recover under them. Folta, 2014 IL App (1st) 123219, at *28.
Defendant Ferro Engineering argued for a narrower interpretation of the term “not compensable under the Act,” and claimed the Court should only find something to be not compensable when it does not arise from the course of employment. Id. at 29. The Court rejected this argument based on the fact that Ferro’s narrow interpretation would make the “not compensable under the Act” exception indiscernible from other exceptions provided in Meerbrey, and would have the Appellate Court overstepping their authority by ignoring Supreme Court precedent. Id. at 30. The court did state that it was confining its holding to the specific fact pattern before it, in which an injured employee’s potential claim under the Act is time-barred before he ever learns of it, thus necessarily depriving him of any potential for compensation under the Act.