Legal Alerts

Illinois Legislature Passes Bill Allowing Civil Suits Against Employers in Latent Injury Cases

Springfield, Ill. (April 17, 2019) – On March 14, 2019, the Illinois legislature passed Senate Bill 1596, lifting the 25-year statute of repose for occupational disease lawsuits and allowing direct common law actions against employers in latent injury cases. If signed into law, the statutory change will eliminate workers’ compensation immunity for Illinois employers where a former employee alleges common law negligence from exposure to radiological or asbestos materials. It will also likely expand civil liability to such employers beyond the “last employer rule” as the proposed change would permit civil action against any former employer.

Currently, the Illinois Workers' Compensation Act and Workers' Occupational Disease Act (the Acts) have a 25-year statute of repose for occupational injury which read as follows:

In cases of disability caused by exposure to radiological materials or equipment or asbestos, unless application for compensation is filed with the Commission within 25 years after the employee was so exposed, the right to file such application shall be barred.

820 ILCS 310/6

For years, Illinois plaintiffs’ attorneys argued successfully to courts that if a latent disease was “not compensable” under the Acts, the exclusive remedy previsions of the Acts also did not apply. However, that all changed in 2015 when the Illinois Supreme Court reversed a lower court ruling in Folta v. Ferro Eng'g, 43 N.E.3d 108 (Ill. 2015).

In Folta, the Illinois Supreme Court held that even where an employee’s “right to seek recovery under the acts was extinguished before the claim accrued…[that] does not mean that the acts have no application or that Folta was then free to bring a wrongful death action in circuit court. Rather, where the injury is the type of work-related injury within the purview of the acts, the employer's liability is governed exclusively by the provisions of those acts.” Folta, 43 N.E.3d at 117.

Although Senate Bill 1596 appears on its face to address the inequities of Folta, it instead expands civil liability for all Illinois Employers rather than merely fixing the repose provision.

The proposed text of the new law states as follows:

Senate Bill 1596

(820 ILCS 305/1.2 new)

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 nonwaivable right to bring such an action against any employer or employers.

Two Madison County, Illinois, area representatives, Jay Hoffman (D-Belleville) and Katie Stuart (D-Collinsville), were among the sponsors in the House. The Illinois Association of Defense Trial Counsel opposes the bill.

It is anticipated that Governor J.B. Pritzker will sign the bill; when he does it will take effect immediately.

We will continue to monitor the legislation and will provide an update if the legislation is signed into law. 

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Authors:

Justin Zimmerman, Associate

Charles S. Anderson, Partner

Jeffrey Bash, Managing Partner, Madison County, IL
 

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