Barred: Illinois Supreme Court Holds That Plaintiffs May Not File Common Law Claims Against Employers, Even After Statutory Periods Have Expired

On November 4, 2015, the Supreme Court of Illinois issued an opinion in Folta v. Ferro Engineering, 2015 IL 118070, which provided much needed clarification to the application of the “exclusive remedy” provisions of the Illinois Workers’ Compensation Act and Occupational Diseases Act in the context of long-latency asbestos-related diseases. Before Folta, several courts have ruled that employees were allowed to file civil lawsuits against their employer, if the 25-year statute of repose for workers’ compensation claims had expired. Folta went the opposite way, reinforcing the longstanding rule that an employee’s exclusive remedy for damages sustained in the course of employment is through the Illinois Workers’ Compensation Commission, regardless of whether any statutory time periods for workers’ compensation claims have expired.

Decedent James Folta worked for Ferro Engineering from 1966-1970 as a direct employee. Forty-one years later, in May 2011, Folta was diagnosed with mesothelioma. He thereafter filed a civil lawsuit in Cook County, Illinois against various defendants, including his former employer, Ferro Engineering, to recover damages. Defendant Ferro Engineering filed a motion to dismiss, alleging that Folta’s claims were barred by the exclusivity provision of the Illinois Workers’ Compensation Act (820 ILCS 305/5) and the Occupational Diseases Act (820 ILCS 310/5). In response, Folta argued that his symptoms did not manifest until 40 years after his last exposure to asbestos from Ferro Engineering and, accordingly, he was unable to file a workers’ compensation claim due to expiration of the 25-year statute of repose included in the Acts. Folta further argued that since the statute of repose had expired, his claims were “non-compensable,” which is one of four exceptions to the exclusivity mandate contained in the Acts.

The trial court granted Ferro Engineering’s motion to dismiss, finding that the action was indeed barred by the exclusivity provision of the Acts. Specifically, the trial court found that expiration of the applicable statute of repose period did not render the cause of action “non-compensable” under the Acts and that his exclusive remedy was still with the Illinois Workers’ Compensation Commission. Folta appealed the lower court’s decision and the appellate court reversed and remanded. The appellate court found that Folta’s injury was not compensable under the Act, because his disease did not manifest until after the statute of repose expired and he had no opportunity to seek compensation under the Acts. Therefore, the court reasoned, that the workers’ compensation exclusivity provision did not bar his suit against his former employer.

The Illinois Supreme Court reversed, ruling that the exclusivity provisions of the Illinois Workers’ Compensation Act and the Illinois Occupational Diseases Act bar an employee’s cause of action against an employer to recover damages for a disease resulting from asbestos exposure which arose out of and in the course of employment even though no compensation is available under those Acts due to statutory time limits on the employer’s liability.

Both the Workers’ Compensation Act and the Occupational Diseases Act provide that compensation provided therein for workplace injuries represent the full and complete remedy to an employee and no other remedy under common law or statutory law is available. 820 ILCS 310/5(a) and 820 ILCS 310/11. As with every rule, however, there are exceptions. Illinois courts have carved out four scenarios in which the exclusivity provisions of the Acts do not apply: (1) the injury was not accidental; (2) the injury did not arise from the employee’s employment; (3) the injury was not received during the course of employment; and (4) the injury is not compensable under the Acts. For the purposes of this analysis, the only relevant exception is the “noncompensability” exception, which is further outlined below.

The Folta decision reviewed a plethora of cases that specifically addressed the compensability of certain injuries under the Acts. In particular, the decision honed in on three cases wherein the plaintiffs sought to recover for injuries such as severe emotional shock and emotional distress that were incurred during employment. Pathfinder Co. v. Industrial Comm’n, 62 Ill.2d 556 (1976); Collier v. Wagner Castings Co., 81 Ill. 2d 229, 237 (1980); Meerbrey v. Marshall Field & Co., 139 Ill.2d 455 (1990). Folta ruled that these three cases stood for the proposition that whether an injury is compensable is related to whether the type of injury categorically fits within the purview of the Act. Contrarily, they do not stand for the proposition that whether an injury is compensable is defined by an ability to actually recover benefits for a particular injury sustained by an employee. Asbestos-related injuries, such as asbestosis or mesothelioma, fall within the purview of the Acts and are specifically addressed by each Act, and are, therefore, compensable.

Folta then ruled that such claims remain compensable despite the expiration of a limitations period on the employer’s liability. The court relied heavily upon Moushon v. National Garages, Inc., 9 Ill. 2d 407 (1956) and Duley v. Caterpillar Tractor Co., 44 Ill. 2d. 15 (1969) in analyzing the efficacy of the exclusivity provisions of the Acts in cases where little or no compensation was received. In Moushon, a workplace accident caused the employee to become permanently impotent. The employer provided medical, surgical, and hospital services for the underlying injury; however, the plaintiff thereafter filed a civil action seeking damages for his impotence that resulted from the workplace accident. Despite the fact that no compensation was available specifically for the injury of impotence, the court held that his claims were barred by the exclusivity provision of the Acts. Mouson, 9 Ill. 2d at 418. Likewise, in Duley, the spouse of a deceased employee who was fatally injured in a workplace accident brought a civil lawsuit against the employer for wrongful death. Although the spouse received nominal reimbursement for funeral expenses, the court found that plaintiff’s wrongful death claims were barred by the exclusivity provisions of the Acts because he was not a dependent of his deceased wife. Duley, 44 Ill. 2d. at 18.

The Illinois Supreme Court agreed that Folta’s injuries are indeed barred by the 25-year statute of repose contained in each of the Acts. This did not, however, mean that exclusivity disappeared over time. “To construe the scope of the exclusive remedy provision 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.”

The Folta decision is significant for Illinois based employer-defendants in cases involving diseases with long latency periods, such as mesothelioma. It is also significant to insurers. The Illinois Supreme Court has made it clear: the Workers’ Compensation Act and Occupational Diseases Act are the full relief afforded to employees for injuries sustained in the course of employment, to the exclusion of any civil litigation, regardless of an expired statutory time period or whether an employee actually recovers compensation.