Asbestos Worker’s Comp Bar Further Lowered in Illinois by New 1st District Appellate Court Opi

A new opinion came out last Friday from the 1st District appellate court in Chicago, and further lowers the  worker’s comp bar in Illinois for at least asbestos latent disease cases. The Folta opinion holds that a former employee can file a common law claim against his employer when his workers comp claim is barred by the 25 year statute of worker’s comp statute of repose for exposure to asbestos. In short, the opinion says that a claim that is barred by the worker’s comp statute is not subject to the worker’s comp statute. The opinion also ties somewhat to the “last injurious exposure” rule. The Folta case was not handled by the Cooney & Conway firm. Instead, the case was handled by the Connelly & Vogelzang firm.

Most defendants will decry the outcome, but some taking a a longer, broader view may not be upset. Why? Because product liability defendants still in the tort system face ever increasing pressures as mesothelioma and lung cancer claims keep rolling in the door.  So, at least some product liability defendants may be relatively happy to see premises owners/employers face greater liability.  Indeed, some defendants could take a similar view with respect to various other types of statute of repose that have taken culpable parties out of the tort system. Once again, there is new evidence to support the maxim of the old adage: “Be careful what you wish for” (or for which you lobby). 

Also note that other courts recently have said similar things, including the Pennsylvania Supreme Court in the Tooey opinion last November that refused to apply the workers comp bar to claims arising after a 300 week period after employment. See here for a summary of Tooey from White and Williams. According to White and Williams: “This decision constitutes a major shift in Pennsylvania law. It significantly increases plant owners’ potential exposure to liability to their employees for latent diseases, and raises coverage issues under general liability and Workers’ Compensation insurance policies.” 

The defendant (Ferro Engineering) no doubt will try a petition to the Supreme Court of Illinois – that probably will not be resolved until late in 2014 or early 2015.

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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