On March 14, 2019, the Illinois House passed Senate Bill 1596 by a vote of 70-40-1. The Bill creates a statutory exception to the workers’ compensation exclusive remedy provision for occupational injuries otherwise barred due to the Acts’ repose provisions. The legislation would amend the Illinois Workers’ Compensation Act and the Workers’ Occupational Diseases Act (the “Acts”) and allow employees to sue their employer in civil tort actions for a latent injury if they are time-barred from bringing a Workers’ Compensation or Occupational Disease claim. This is likely to result in increased civil claims against employers. The Bill had earlier passed the Senate on March 6 in a 41-16-1 vote. It appears that Governor Pritzker will sign the bill. It would take effect immediately.
Bill 1596 adds Section 1.2 as follows:
Sec. 1.2. Permitted civil actions. Subsection (a) of Section 5 and Section 11 do not apply to any injury or death sustained by an employee as to which the recovery of compensation benefits under this Act would be precluded due to the operation of any period of repose or repose provision. As to any such injury or death, the employee, the employee’s heirs, and any person having standing under the law to bring a civil action at law, including an action for wrongful death and an action pursuant to Section 27-6 of the Probate Act of 1975, has the non-waivable right to bring such an action against any employer or employers.
The New Bill Overrides a Previous Supreme Court Decision Related to Worker’s Compensation Act and Occupational Diseases Act
This new legislation will essentially override the Illinois Supreme Court’s decision in Folta v. Ferro Engineering, 2015 IL 118070 (2015), where the Court held that the Worker’s Compensation Act and Occupational Diseases Act provided the exclusive remedy to Illinois employees who suffered latent occupational injuries. In that case, James Folta was employed by Ferro Engineering from 1966-1970. He was allegedly exposed to asbestos during the time of this employment. Forty-one years later in 2011, Folta was diagnosed with mesothelioma (an asbestos related disease). Since he was time-barred in making a workers’ compensation claim by the Acts’ 25-year statute of repose, Folta filed a civil tort claim against his former employer Ferro Engineering. The circuit court granted Ferro’s motion to dismiss but was reversed by the appellate court.
On appeal to the Illinois Supreme Court, Folta argued that the exclusive remedy of the Acts should not apply to him, as his injury did not manifest until after the expiration ofthe 25-year statute of repose. The court found that even though the Acts barred Folta’s claim before it had accrued, that this wasactually consistent with the purpose of the repose provision of the Acts. The purpose of a statute of repose period is to terminate the possibility of liability after a defined period. The fact that Folta was not at fault for failing to file a claim sooner due to the nature of his disease was irrelevant. Further, the court determined that Folta’s interpretation would directly contradict the plain language of the exclusive-remedy provision which provides that the employer’s liability is “exclusive and in place of any and all other civil liability whatsoever, at common law or otherwise.” 820 ILCS 310/11. The Acts were designed to provide certain financial protection for employees for accidental injuries arising out of and in the course of employment. The Court found that the exclusive remedy provision was a vital part of the workers’ compensation framework, and allowing an employee such as Mr. Folta to have a civil law claim against his employer would undermine the framework of that system.
With the New Bill, Employee Latent Injuries Could Lead to increased Civil Claims AgainstIllinois Employers
Current Illinois law imposes liability without fault on the employer and in return prohibits common law suits by elmployees against their employer. It balances the sacrifices and gains of the employees and employers under the workers’ compensation system. If Governor Pritzker signs Senate Bill 1596 into law, Illinois employers will find that they are most likely uninsured for the civil claims brought by employees with latent diseases. General Liability Insurance policies have a standard exclusion for claims by an employee, and Worker’s Compensation policies have a standard exclusion for any civil claims against the employer. Illinois employers could have unlimited liability for an employee’s latent injury claims, and in many cases no insurance to cover these claims.
Paul S. Steinhofer is an experienced civil litigator who devotes his practice to defending businesses with complex civil tort matters. Please contact Paul for questions about this topic or any other commercial defense matters