Folta v. Ferro Engineering
2014 IL App (1st) 123219
Ill. App. Ct.2014Background
- James Folta worked for Ferro Engineering from 1966–1970 and was allegedly exposed to asbestos while performing quality-control tasks that generated airborne fibers.
- Folta was diagnosed with peritoneal mesothelioma on May 17, 2011—41 years after his last exposure; statutory repose periods in the Workers’ Compensation Act (25 years for asbestos) and the Workers’ Occupational Diseases Act (3 years for asbestos disease) had already expired.
- Instead of filing a workers’ compensation claim (time-barred), Folta sued Ferro (and other suppliers) in Cook County circuit court for negligence, premises liability, intentional misconduct, and fraud; Ferro moved to dismiss under 735 ILCS 5/2-619, asserting the Acts’ exclusive-remedy provisions barred the suit.
- Folta argued his suit falls within the Meerbrey exception allowing common-law suits when an injury is “not compensable under the Act” because his statutory remedy had been foreclosed by repose; the trial court dismissed his claims and denied reconsideration.
- On appeal the Illinois Appellate Court reviewed de novo whether an injury statutorily time-barred before discovery is “not compensable under the Act” and thus outside the exclusivity provisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether exclusivity bars a common-law suit when workers’ compensation remedies were time-barred before diagnosis | Folta: an injury is “not compensable under the Act” if the worker is barred from recovery (e.g., by statute of repose), so Meerbrey exception applies | Ferro: “compensable” means any injury that arises out of and in the course of employment; if so, exclusivity applies regardless of time bars | The court held the Meerbrey exception applies where statutory repose precludes any recovery; exclusivity does not bar Folta’s common-law claims |
| Whether plaintiff waived claims by filing a third amended complaint that omitted Ferro | Folta: trial court never granted leave to file the third amended complaint, so the second amended complaint (which includes Ferro) controls | Ferro: omission in the third amended complaint shows abandonment of claims | Court found no valid written leave; treated the third amended complaint as a nullity and held Folta did not waive claims against Ferro |
Key Cases Cited
- Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455 (Ill. 1990) (establishes four exceptions to exclusivity, including injuries "not compensable under the Act")
- Collier v. Wagner Castings Co., 81 Ill. 2d 229 (Ill. 1980) (describes exclusivity purpose: prevent double recovery and proliferation of litigation)
- Toothman v. Hardee’s Food Systems, Inc., 304 Ill. App. 3d 521 (Ill. App. Ct. 1999) (injuries unable to be compensated under Act fall within Meerbrey exception)
- Schusse v. Pace Suburban Bus Div., 334 Ill. App. 3d 960 (Ill. App. Ct. 2002) (spoliation damages are not recoverable under Act, so Meerbrey exception permits common-law suit)
- Sjostrom v. Sproule, 33 Ill. 2d 40 (Ill. 1965) (line-of-duty test equated with compensability where no separate compensability issue was presented)
- Unger v. Continental Assurance Co., 107 Ill. 2d 79 (Ill. 1985) (applies line-of-duty/compensability analysis in context without addressing time-barred claims)
- Gidley v. W.R. Grace & Co., 717 P.2d 21 (Mont. 1986) (other-jurisdiction authority holding time-barred occupational disease claims fall outside exclusivity)
- Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013) (Pennsylvania Supreme Court holding occupational-disease claims that manifest outside statutory recovery window are not within workers’ compensation exclusivity)