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Ill.: Court Allows Asbestos Personal Injury Suit Against Employer to Proceed

By Susan R. Heylman  7/29/2014
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In case of first impression in Illinois, an appeals court ruled that a plaintiff with a time-barred workers’ compensation claim can sue his employer outside of the Workers’ Compensation Act (Act) and the Workers’ Occupational Diseases Act (WODA) when the employee first learned of his injury after expiration of the time to sue under those acts.


The plaintiff in the case, James Folta, was allegedly exposed to asbestos at plant owned by his employer, Ferro Engineering, from 1966 to 1970. On May 17, 2011, 41 years after leaving employment with Ferro, the plaintiff was diagnosed with peritoneal mesothelioma.

At that time, any potential asbestos-related workers’ compensation claim against the employer was time-barred by the Act’s 25-year statute of repose for asbestos-related injuries and the three-year statute of repose for asbestos-related diseases under WODA.

The plaintiff filed a common law personal injury suit against Ferro and 14 other defendants who allegedly supplied Ferro with products or equipment containing asbestos. The circuit court granted Ferro’s motion to dismiss, and the plaintiff appealed.

Exception to Workers’ Comp Exclusivity

Although the appellate court held that the plaintiff was not limited to seeking redress under workers' compensation laws and could pursue his asbestos personal injury claims against the employer, it confined the ruling to the specific fact pattern presented: when an injured employee’s potential claim under the act was time-barred before he ever learned of it, thus necessarily depriving him of any potential for compensation under the act.

The court explained that the scope of the exclusivity bars of the two acts was not absolute, because an injured employee may still bring a common-law action against his employer if he can prove any of these 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 was not compensable under the act.

The case fell under the fourth exception. “In the present case,” the court said, “plaintiff’s injury is quite literally not compensable under the act, in that all possibility of recovery is foreclosed because of the nature of his plaintiff’s injury.”

Through no fault of his own, the court said, the plaintiff never had an opportunity to seek compensation under the act, and the same was true of any potential claim under WODA. Accordingly, the fourth exception applied to allow the plaintiff to bring a common law suit against his employer.

The court found that this interpretation of compensability was consistent with the purposes of the Act’s exclusivity bar. There was no fear of double recovery inasmuch as the plaintiff was barred from seeking any form of recovery under the act. “Permitting plaintiff to bring suit against his employer in the circuit court will not cause the proliferation of litigation; he has but one avenue to seek redress of his alleged injuries,” the court said.

Folta v. Ferro Engineering, Ill. App. Ct., No. 1-12-3219 (June 27, 2014).

Susan R. Heylman, J.D., is a freelance legal writer and editor based in the Washington, D.C., area.

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