Seminars & Publications

Illinois Supreme Court Throws out Asbestos Lawsuit against Plaintiff’s Former Employer

November 2015

In a decision released on Wednesday, November 4, the Illinois Supreme Court upheld the exclusive remedy provisions of the Illinois Workers' Compensation Act and the Workers' Occupational Disease Act (the "Acts") by barring an employee's asbestos personal injury lawsuit against his former employer.

The decision in Folta v. Ferro Engineering overturns the precedent set by the First District Court of Appeals last year that allowed Plaintiff James Folta to proceed with a personal injury suit against his former employer outside of the workers' compensation system, even though his claims stemmed from his alleged exposure to asbestos in the workplace. The ruling brings relief to employers and insurers, given that employees' asbestos claims in civil lawsuits had been increasing over the past several years.

Plaintiff's Asbestos Exposure and the Appellate Court Ruling

James Folta worked for Ferro Engineering from 1966 and 1970, where he claimed he was regularly exposed to asbestos. Folta was diagnosed with mesothelioma in 2011 – 41 years after his last workplace asbestos exposure. Later that year, he filed a lawsuit in Cook County against his former employer and several manufacturers of asbestos-containing products. The trial court granted Ferro's motion to dismiss on the grounds that Folta's only means of recovery against his employer for his workplace injury was through the workers' compensation system. Folta's claims against the non-employer defendants were unaffected by the ruling.

On appeal, the court found that Plaintiff's potential workers' compensation claims were barred by the 25-year statute of repose applicable to claims filed under the Acts, because Plaintiff's injury did not occur until he was diagnosed in 2011. Parsing the established exceptions, the appellate court held that because Plaintiff's workers' compensation claims were time-barred, his injuries were not "compensable" injuries under the Acts and therefore not subject to the Acts' exclusive remedy provisions that would limit Plaintiff's recourse to the workers' compensation system. Thus, Plaintiff was free to pursue his lawsuit against his former employer.

The Supreme Court's Decision and Its Impact

The Illinois Supreme Court reversed, holding that an employee's tort claims against his employer for asbestos-related diseases are indeed barred by the exclusive remedy provisions of the Acts, even when the injuries do not arise until after the Acts' 25-year time limit had run. The court determined that whether an injury is "compensable" under the Acts for purposes of the exclusive remedy provisions turns on whether the claimed injury is of the type for which the Acts provide compensation and not on whether a claimant can actually recover under the Acts for that injury. Since there was no question that Folta's injuries arose out of his employment and because the Acts expressly cover asbestos-related diseases, the court found that Folta's claims were "compensable" and not subject to the exception relied upon by the appellate court.

The appellate court's ruling, if allowed to stand, would have resulted in employers' having expansive liability for employees' personal injury claims arising long after the workers compensation time limits had run. In most instances, employers in such a position would also be without insurance coverage given the exclusions for employee injuries in typical general liability policies.

The full text of the decision is available here.

For information regarding the Folta decision, asbestos litigation, or other environmental and toxic tort-related litigation, please contact Douglas M. Nieder, David A. Weder, or Corey M. Schaecher.