Ill. SC bars Workers' Comp asbestos claim; Employers breathing 'sigh of relief,' attorney says

By Vimbai Chikomo | Jan 7, 2016

SPRINGFIELD, Ill. (Legal Newsline) - The Illinois Supreme Court recently ruled against a plaintiff in a mesothelioma case, stating that the claim did not meet the time limitations established in the Workers’ Compensation Act and the Workers’ Occupational Disease Act.

The plaintiff’s diagnosis came 16 years after the time limitations had expired under these acts.

“I think this is a surprising decision, in that the appellate court had ruled that the plaintiff could move forward with his claims, because of the latency of the disease. The Illinois Supreme Court reversed the appellate court decision,” said David J. Scriven-Young, Senior Counsel at Peckar & Abramson PC.

“On the other hand, the plain language of the statute of repose actually is pretty clear that these claims should be cut off after a certain period of time.”

On Nov. 4, the Illinois Supreme Court barred Ellen Folta, special administrator of James Folta’s estate, from bringing action against Ferro Engineering for a mesothelioma diagnosis after alleged exposure to asbestos while he was employed as a shipping clerk and product tester for the company from 1966 to 1970.

James was diagnosed with the asbestos-related disease 41 years later and sued his employer and 14 other defendants in a civil lawsuit in Cook County one month later, seeking to recover damages for the disease.

The Illinois Workers’ Occupational Diseases Act states in section 6(c) that “unless application for compensation is filed with the Commission within 25 years after the employee was so exposed, the right to file such application shall be barred.”

Ferro Engineering filed a motion to dismiss the complaint arguing that Folta’s claims were barred “by the exclusive remedy provisions” of the Workers’ Compensation Act and the Workers’ Occupational Diseases Act.

Folta maintained that since his disease didn’t manifest until 41-years after his last exposure to asbestos, any asbestos-related compensation claim was barred before he had any knowledge of his disease, therefore, his claim “fell outside the exclusive remedy provisions because his claims were not 'compensable' under the acts.”

The court held that the plain language of the statutes barred Folta’s right to bring a claim after 25 years, and found that the 25-year time limit imposed by the Workers’ Occupational Diseases Act “acts as a statute of repose and creates an absolute bar on the right to bring a claim,” and that the purpose of the repose period is to “terminate the possibility of liability after a defined period of time.”

“Although this may not necessarily be fair to individuals who get the disease and receive a late diagnosis, the intent of the statutes is to allow companies to not face litigation for something that took place decades ago,” Scriven-Young explained.

Scriven-Young stated that the court's decision is consistent with what happened previously - it was actually the appellate court that seemed to change the rules a bit, he said.

“So I think employers are breathing a sigh of relief at this point that there will not be a flood of new litigation and an expansion of their liability,” he said.

In its ruling, the court stated that it was “cognizant of the harsh result in this case,” but asserted that the decision on whether to create a “different balance” under the acts given the current knowledge of asbestos exposure and mesothelioma is “a question more appropriately addressed to the legislature.”

Scriven-Young explained that many companies have taken a big hit financially due to asbestos claims.

“In general, asbestos litigation has threatened the financial well-being of many companies,” he said. “It is hard to tell exactly how many folks out there are time-barred by the statute (and now by this new court decision), but the opposite result might have tipped some employers over the edge into bankruptcy."

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