Forty-One Years After Exposure, Illinois Supreme Court Finds Mesothelioma Claim Is Barred By The Exclusive Remedy Provision

March 2016

By Molly P. Connors

In a recent case, Folta v. Ferro Engineering, 2015 IL 118070, the Illinois Supreme Court held that an employee's lawsuit against his employer was barred by the exclusive remedy provisions of the Workers' Compensation Act and the Workers' Occupational Diseases Act, even when he was diagnosed with an occupational disease after the statute of repose in the Workers' Occupational Diseases Act had run. The plaintiff alleged he was exposed to products containing asbestos during the four-year period he worked for the defendant, from 1966 to 1970. Forty-one years later, the plaintiff was diagnosed with mesothelioma; one month later, he filed a complaint against Ferro Engineering ("Ferro") and 14 other defendants, seeking damages stemming from the asbestos exposure he experienced while working at Ferro.

Ferro filed a motion to dismiss the plaintiff's complaint, arguing that his claims were barred by the exclusive remedy provisions of the Workers' Compensation Act and the Workers' Occupational Diseases Act. In response, the plaintiff asserted that because his symptoms did not manifest until after the 25-year limitation period in the Workers' Occupational Diseases Act had expired, his claims were not compensable under the acts. Therefore, he concluded, the acts' exclusive remedy provisions did not apply. The circuit court granted Ferro's motion to dismiss. The appellate court reversed, finding that the exclusive remedy provisions do not apply when the employee's claim is not compensable, and the plaintiff's claim was not compensable because he did not have an opportunity to pursue his claim before the expiration of the statute of repose.

The Supreme Court reversed the appellate court's decision. The court explained there is an exception to the exclusive remedy provisions if the injury is not compensable under the acts. The court reviewed prior cases interpreting that exception and concluded that the analysis of whether an injury is compensable is based upon whether the type of injury is covered by the acts, not whether the employee is able to recover benefits under the acts. The plaintiff's mesothelioma was found to be the type of injury covered by the acts.

In response to the plaintiff's argument that the exclusive remedy provisions should not apply because he had no opportunity to seek benefits before the limitations period ran, the court determined that allowing the plaintiff's claim would subvert the purpose of the 25-year statute of repose. The court recognized that its interpretation of the statue of repose led to a harsh result, but noted the plaintiff could pursue his claims against the other 14 defendants, manufacturers of asbestos-related products.

This case is beneficial for companies whose employees may have been exposed to asbestos. The Supreme Court clarified that the compensability determination under the Workers' Compensation Act and the Workers' Occupational Diseases Act is based upon the type of injury. Because mesothelioma is clearly covered by the acts, there is no exception to the exclusive remedy provisions for that disease. The court also showed that it is willing to strictly construe the statute of repose in the Workers' Occupational Diseases Act, and will not grant exceptions for employees who were diagnosed with a disease over 25 years after their exposure.