Illinois Appellate Court Reverses Dismissal of Asbestos-Injured Employee

James Folta had stopped working at Ferro Engineering 41 years before he was diagnosed with peritoneal mesothelioma. He claimed that while working for Ferro Engineering he was exposed to “tremendous amounts of airborne asbestos fibers.” According to the lawsuit, Folta knew that exposure to asbestos dust was dangerous, but Ferro Engineering did not warn him and did not provide respiratory safety equipment.

By the time Folta received the fatal diagnosis, the statutes of repose had expired for claims under the Illinois Workers’ Compensation Act (the statute is 25 years) and the Workers’ Occupational Diseases Act (the statute is 3 years after the claimant stopped working for the employer).

As Folta had no other available course of action, he filed a lawsuit in the Circuit Court of Cook County claiming that his mesothelioma was caused by the negligence of Ferro Engineering. Because of the exclusive-remedy provisions found in the Workers’ Compensation and Occupational Diseases statutes, the lawsuit was dismissed.

 Folta cited Meebrey v. Marshall Field & Co., Inc., 139 Ill.2d 455 (1990) that the exclusive remedy provision in the workers’ compensation law did not apply to him because his injury was “not compensable under the act.”

According to the decision in Meebrey, “an injured employee may still bring a common-law action against his employer if he can prove any of the following exceptions:

(1) The injury was not accidental;
(2) The injury did not arise from his employment;
(3) The injury was not received during the course of employment; or
(4) The injury is not compensable under the act.

The trial court dismissed the tort claim in the Circuit Court of Cook County and Folta appealed to the Illinois Appellate Court.

First, the Illinois Appellate Court reversed the dismissal of the tort action in the circuit court and stated that the fourth exception in Meebrey allowed a plaintiff like Folta to bring a common-law lawsuit against this employer.

The court stated that the exclusivity bars are upheld for these two reasons: They are intended to prevent double recovery and to prevent the proliferation of litigation. Collier v. Wagner Castings Co., 81 Ill.2d 229 (1980).

Folta argued that the fourth exception in the Meebrey case allowed him to bring a common-law lawsuit against his former employer because any potential claim under the Workers’ Occupational Diseases Act was time-barred before he became aware of his injuries. This case was one of first impression in Illinois.

Ferro Engineering argued that the court should adopt a narrow reading of the phrase found in Meerbrey that an injury is not compensable only if it does not arise out of or in the course of employment. Ferro proposed that the definition of compensability would render the fourth Meerbrey exception superfluous since Meebrey already contains explicit exceptions for injuries that did not arise from a worker’s employment and injuries that were not received during the course of employment. The appellate court interpreted the Illinois Supreme Court’s decision in Meebrey in a different way. The court rejected Ferro Engineering’s proposed definition of compensability and instead articulated a definition related to plaintiff’s ability to recover under the act. Toothman v. Hardee’s Food Systems, 304 Ill.App. 3d 521 (1999); Schusse v. Pace, 334 Ill.App. 3d 960 (2002).

The court acknowledged that Folta’s mesothelioma or asbestos-related diseases were not diagnosed until 41 years after leaving the employment of Ferro Engineering. Through no fault of his own, the plaintiff never had the opportunity to seek compensation under the act. The same would be true under any potential claim under the Workers’ Occupation Diseases Act. Therefore, the court concluded that the fourth Meerbrey exception applied to allow Folta to bring his common-law lawsuit against his employer. Accordingly, the Illinois Appellate Court reversed the judgment of the trial judge insofar as it found that the plaintiff’s lawsuit against Ferro Engineering was not barred by the exclusivity provisions of the act and the Workers’ Occupational Diseases Act. The case was sent back to the trial court for further proceedings.

Folta v. Ferro Engineering, 2014 IL App (1st) 123219 (June 27, 2014).

Kreisman Law Offices has been handling construction site injury cases, work injury cases, truck accident cases and automobile accident cases for individuals and families who have been harmed, injured or died as a result of the negligence another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Schaumburg, Schiller Park, Palatine, Prospect Heights, Calumet City, Mundelein, St. Charles, University Park, New Lenox, Lemont, New Lenox, Flossmoor, Winnetka, Wilmette and Chicago, Ill.

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