Anna Aguillard Nov. 20, 2015, 3:08pm


The Illinois Supreme Court recently issued a decision barring employees from bringing tort claims against former employees for injuries incurred during previous employment that now are barred by the state Workers’ Compensation Act’s statutes of repose.

The high court's ruling arose from a case brought by plaintiff James Folta who was diagnosed with peritoneal mesothelioma 41 years after being employed at a plant owned by Ferro Engineering, during which time he allegedly was exposed to asbestos.

By the time his diagnosis occurred, he was time-barred by the Workers’ Compensation Act’s 25-year statute of repose for asbestos related injuries, and three-year statute of repose for asbestos-related diseases. Instead of filing under the Workers’ Compensation Act, Folta filed a lawsuit in Cook County Circuit Court. 

Ferro Engineering responded by filing a motion to dismiss Folta’s claims, arguing that because his injury arose during his employment, he was barred by the Workers’ Compensation Act’s time statute.

The trial court granted Ferro Engineering’s motion, and Folta appealed. The appellate court reversed and remanded, allowing Folta to file a tort claim.

Ferro Engineering took the matter to the Supreme Court which then sided with the trial court, reversing the appellate court decision, and strengthening the Workers’ Compensation Act’s statute of repose.

According to attorney Elizabeth Cummings of the Polsinelli firm in St. Louis, the court’s decision will make it more difficult for an employee who develop diseases with long latency periods, such as asbestos-related diseases, to sue his or her employer.

“The Folta decision will impact the individual employers who have been sued as defendants,” Cummings told the Record. “Plaintiffs will be unable to avoid the workers’ compensation bar.”

However, the Supreme Court’s decision does not prevent plaintiffs from seeking damages from other classes of defendants, according to Cummings. Plaintiffs such as Folta can seek recourse from third parties.

“Plaintiffs will likely still sue the same number of product defendants, so the impact to each individual plaintiff may not be significant,” said Cummings.

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