Authored by Todd M. Rowe, Partner at Tressler LLP
Senate Bill 1596, which creates an exception to the workers’ compensation system by allowing civil actions to be brought against Illinois employers in latent injury cases, has been signed into Illinois law by Governor J.B. Pritzker.
By way of background, Asbestos plaintiffs’ attorneys introduced SB 1596 in an effort to reverse the longstanding law created by the Illinois Supreme Court’s holding in Folta v. Ferro Engineering, 2015 IL 118070 (2015). In Folta, the Court held that the Worker’s Compensation Act (“Workers’ Comp Act”) and Occupational Diseases Act (“Diseases Act”) were the “exclusive remedy” to employees claiming to suffer from latent injuries. Specifically, in Folta, the Supreme Court considered whether an employee can bring an action against an employer outside of the Worker’s Comp Act and the Diseases Act, when the employee’s injury or disease first manifests after the expiration of the time limits provided under these acts. Ultimately, the Supreme Court held the employee’s action was barred by the exclusive remedy provisions of the acts. Further, employers have been able to rely on a 25-year statute of repose that limits the time for a worker to bring a claim prior to SB 1596 passing.
On the other hand, with the passage of SB 1596, all time bars for employees claiming to suffer from latent illnesses caused by exposure to toxic substances (including asbestos, radiation, beryllium or similar substances) have been lifted and employees may file suit against their employers. The version of SB 1596 signed by Governor Pritzker’s carves out exceptions to the Workers’ Comp Act for cases of exposure to toxic substances with the following provision:
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.
There are a number of questions concerning SB 1596, which takes effect immediately, including whether this law will apply retroactively and revive claims that were already time barred. Illinois courts will undoubtedly be called upon to interpret this law in order to provide Illinois employers with proper guidance. In short, now that SB 1596 has become law, Illinois employers should immediately begin working with their legal counsel and insurance professionals to determine if they and their employees are protected.
Todd Rowe is a partner in Tressler LLP. He regularly advises insurers on complex matters, including the resolution of large claims and claims under specialty and commercial insurance lines throughout the country.
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