Illinois Official Reports
Appellate Court
Folta v. Ferro Engineering, 2014 IL App (1st) 123219
Appellate Court ELLEN FOLTA, Individually and as Special Administrator of the
Caption Estate of James Folta, Deceased, Plaintiff-Appellant, v. FERRO
ENGINEERING, a Division of ON Marine Services Company,
Defendant-Appellee.
District & No. First District, Fifth Division
Docket No. 1-12-3219
Filed June 27, 2014
Held The claim of plaintiff’s decedent against defendant for the
(Note: This syllabus asbestos-related disease he suffered as a result of working with
constitutes no part of the asbestos as part of his employment was improperly dismissed on the
opinion of the court but ground that the claim was barred by the exclusive remedy provision of
has been prepared by the the Workers’ Compensation Act and the Workers’ Occupational
Reporter of Decisions Diseases Act, since the decision of the Illinois Supreme Court in
for the convenience of Meerbrey held that the exclusive remedy provision does not apply
the reader.) where a claim is “not compensable under the Act,” and plaintiff’s
claim fell within the scope of that holding because it was time barred
by the expiration of the limitations periods in both Acts, thereby
leaving her free to pursue a common-law action.
Decision Under Appeal from the Circuit Court of Cook County, No. 11-L-6753; the
Review Hon. William D. Maddux, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Nicholas J. Vogelzang, of Connelly & Vogelzang, LLC, of Chicago,
Appeal and Donald P. Blydenburgh and Jerome H. Block, both of Levy
Phillips & Konigsberg, LLP, of New York, New York, for appellant.
Joshua G. Vincent and Craig T. Liljestrand, both of Hinshaw &
Culbertson LLP, of Chicago, for appellee.
Panel JUSTICE TAYLOR delivered the judgment of the court, with
opinion.
Presiding Justice Gordon and Justice McBride concurred in the
judgment and opinion.
OPINION
¶1 This is a case of first impression in Illinois. It is a decision that determines when an
employee can sue his employer outside of the Workers’ Compensation Act (820 ILCS 305/1
et seq. (West 2010)) (the Act) and the Workers’ Occupational Diseases Act (820 ILCS 310/1
et seq. (West 2010)) when the employee first learns of his injury after the expiration of the
statute of repose under those acts.
¶2 Plaintiff James Folta1 was allegedly exposed to asbestos at a plant owned by defendant
Ferro Engineering from 1966 to 1970. Forty-one years after leaving the employ of Ferro
Engineering, on May 17, 2011, plaintiff was diagnosed with peritoneal mesothelioma. By this
time, any potential asbestos-related workers’ compensation claim against Ferro Engineering
was time-barred by the Act’s 25-year statute of repose for asbestos-related injuries and the
three-year statute of repose for asbestos-related diseases under the Workers’ Occupational
Diseases Act. Thus, instead of filing a workers’ compensation claim, plaintiff filed the instant
action in the circuit court of Cook County on June 29, 2011, against Ferro Engineering and 14
other defendants that allegedly supplied Ferro Engineering with products or equipment
containing asbestos.
¶3 Ferro Engineering filed a motion under section 2-619 of the Code of Civil Procedure (735
ILCS 5/2-619 (West 2010)) to dismiss plaintiff’s counts against it, arguing that because
plaintiff’s injuries arose out of and in the course of his employment, his action was barred by
the exclusive remedy provision of the Act (820 ILCS 305/5(a) (West 2010)) and the parallel
provision in the Workers’ Occupational Diseases Act (820 ILCS 310/11 (West 2010)).
Plaintiff argued that the exclusive remedy provision did not bar his action, since that provision
does not apply to claims that are “not compensable under the Act.” Meerbrey v. Marshall Field
& Co., 139 Ill. 2d 455, 467 (1990). The trial court granted Ferro Engineering’s motion to
dismiss, and plaintiff now appeals. For the reasons that follow, we reverse and remand.
1
Mr. Folta died during the pendency of this action, and his wife, Ellen Folta, was substituted as
plaintiff. For the sake of consistency, we shall refer to Mr. Folta throughout as “plaintiff.”
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¶4 I. BACKGROUND
¶5 In his complaint, plaintiff alleged the following facts. Plaintiff worked for Ferro
Engineering from 1966 to 1970 as a nonunion clerk and product tester. During that time, he
worked with various asbestos-containing products on a daily basis. Specifically, plaintiff’s
supervisors allegedly directed him to perform quality control tests on asbestos-containing “hot
tops” and “hot top liners.” These quality tests required him to cut and saw the products, which
created “tremendous amounts of airborne asbestos fibers” that plaintiff would inhale. Plaintiff
further alleged that, during the time of his employment, Ferro Engineering was aware of the
health risks posed by asbestos dust, but it concealed this information from plaintiff and failed
to provide him with respiratory safety equipment. He claimed that as a direct and proximate
result of Ferro Engineering’s actions, he developed an asbestos-related disease, namely,
mesothelioma. Based upon these allegations, plaintiff’s complaint sought relief against Ferro
Engineering in five counts: negligence (counts VII and XI), premises liability (count XVI),
intentional misconduct (count XVII), and fraud (count XVIII). He also alleged various counts,
which are not material to this appeal, against other defendants that allegedly supplied Ferro
Engineering with asbestos-containing products or equipment.
¶6 Ferro Engineering filed a motion to dismiss the counts against it under section 2-619 of the
Code of Civil Procedure (735 ILCS 5/2-619 (West 2010)). In that motion, Ferro Engineering
argued that plaintiff’s claims were barred by the exclusivity provision of the Act, which
provides, in relevant part:
“No common law or statutory right to recover damages from the employer *** for
injury or death sustained by any employee while engaged in the line of his duty as such
employee, other than the compensation herein provided, is available to any employee
who is covered by the provisions of this Act ***.” 820 ILCS 305/5 (West 2010).
Ferro Engineering also argued that plaintiff’s claims were barred by the exclusivity provision
of the Workers’ Occupational Diseases Act (820 ILCS 310/11 (West 2010)), which is
homologous for purposes of judicial interpretation (see Handley v. Unarco Industries, Inc.,
124 Ill. App. 3d 56, 70 (1984)). Ferro Engineering further noted that these exclusivity
provisions were in force during plaintiff’s period of employment from 1966 to 1970.
¶7 Plaintiff filed a response in which he argued that his suit fell under an exception to the
aforementioned exclusivity provisions for claims that are “not compensable under the Act.”
Plaintiff stated that the Act contains a 25-year statute of repose that runs from the date of the
worker’s last exposure to asbestos. His last exposure to asbestos was over 40 years ago, in
1970, which was the year that he left the employ of Ferro Engineering. Accordingly, plaintiff
argued, he was unable to seek a remedy under either the Act or the Workers’ Occupational
Diseases Act, and their exclusivity provisions did not apply.
¶8 On March 23, 2012, the trial court granted Ferro Engineering’s motion to dismiss the
counts against it, holding that the running of a statute of repose does not render a cause of
action noncompensable under those acts. Plaintiff filed a motion for reconsideration, which the
trial court denied in an order dated April 25, 2012. The order explicitly stated that “all claims
against Defendant, Ferro Engineering *** are dismissed.”
¶9 On April 26, 2012, the trial court granted plaintiff’s motion to file a second amended
complaint, and plaintiff did so on that same day. The second amended complaint incorporated
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and realleged the five counts against Ferro Engineering that the court had previously
dismissed. Plaintiff additionally sought an Illinois Supreme Court Rule 304(a) (eff. Feb. 26,
2010) finding with respect to the dismissal of his claims against Ferro Engineering, but the
court denied the motion.
¶ 10 Meanwhile, the suit continued as to the remaining defendants. On September 13, 2012,
plaintiff filed a third amended complaint that was directed solely against Clark Insulation, the
only remaining party in the case, and did not make any claims against Ferro Engineering.
However, the record does not contain any order of the court granting plaintiff leave to file a
third amended complaint.
¶ 11 Plaintiff’s cause of action against Clark Insulation was dismissed pursuant to an agreed
order on September 25, 2012. Plaintiff then filed a notice of appeal from the March 23, 2012,
order granting Ferro Engineering’s motion to dismiss and from the April 25, 2012, order
denying plaintiff’s motion to reconsider.
¶ 12 II. ANALYSIS
¶ 13 Plaintiff contends, as he did before the trial court, that his claims against Ferro Engineering
fall under an exception to the exclusivity provisions of the Act and the Workers’ Occupational
Disease Act for claims that are not compensable under those acts. Plaintiff additionally
contends that, if those exclusivity provisions were to bar his claims against Ferro Engineering,
it would violate his equal protection and due process rights under the Illinois Constitution.
¶ 14 A. Waiver
¶ 15 As a threshold matter, Ferro Engineering contends that plaintiff has waived his claims
against Ferro Engineering by failing to refer to or incorporate them in his third amended
complaint. Whether a dismissed claim has been preserved for review is a question of law that
we review de novo. Bonhomme v. St. James, 2012 IL 112393, ¶ 17.
¶ 16 When certain of plaintiff’s claims are dismissed, and plaintiff subsequently files an
amended complaint that does not refer to or incorporate those claims, plaintiff has abandoned
those claims and may not raise them on appeal. Id. ¶¶ 17-19; Barnett v. Zion Park District, 171
Ill. 2d 378, 384 (1996). In this case, plaintiff’s third amended complaint was directed solely
against Clark Insulation, the only remaining defendant in the case, and did not make any claims
against Ferro Engineering. Plaintiff, however, argues that the trial court never gave him leave
to file a third amended complaint. Thus, according to plaintiff, the operative complaint in this
appeal is the second amended complaint, which incorporated and re-alleged the five counts
against Ferro Engineering that were in his original complaint.
¶ 17 Plaintiff is correct in stating that an amendment to a pleading that is filed without leave of
court must be disregarded on review. Midwest Bank & Trust Co. v. Village of Lakewood, 113
Ill. App. 3d 962, 968 (1983) (citing In re Marriage of Peoples, 96 Ill. App. 3d 94, 96 (1981));
see also Greene v. Helis, 252 Ill. App. 3d 957, 960 (1993) (amended complaint was “a nullity”
where it was filed without leave of court); Condell Hospital v. Health Facilities Planning
Board, 161 Ill. App. 3d 907, 935 (1987) (trial court correctly struck amended complaints that
were filed without leave of court). Where an amended complaint is disregarded on appeal due
to being filed without leave of court, the prior complaint controls. Peoples, 96 Ill. App. 3d at
96.
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¶ 18 In the present case, the parties dispute whether plaintiff’s third amended complaint was
filed with leave of court. The record does not contain any written order granting plaintiff leave
to file a third amended complaint. Nevertheless, Ferro Engineering contends that the trial court
orally granted leave to file during a pretrial hearing on September 13, 2012. Plaintiff disagrees
and further asserts that the transcript of that hearing clearly indicates that plaintiff did not
intend to abandon his claims against Ferro Engineering.
¶ 19 We therefore turn to an examination of the September 13, 2012, hearing. At that hearing,
counsel for plaintiff asked for leave to file a third amended complaint. He explained that the
original complaint had a survival count and a count for loss of consortium, but those counts
were mistakenly omitted from the second amended complaint. He asked for leave to add those
counts back in.
¶ 20 Clark Insulation, the only remaining defendant in the case, initially objected to plaintiff’s
motion to amend. Later that day, it withdrew its objection. The court said, “So now are
[illegible] the amended complaint? No objection. Granted. File it. Okay. Now it’s filed.” The
following colloquy then occurred:
“MR. GROSSMARK [counsel for Clark Insulation]: But the allegations will be the
same because we’re relying on the second amended complaint.
THE COURT: The one that I allowed today?
MR. GROSSMARK: No. No. No. The one that’s on file. *** [W]e would like it to
be understood that what they’re going to do is add the survival claim and add a loss of
consortium claim against Clark, but they’re not taking anything out of the complaint.
THE COURT: Didn’t they have one prepared?
MR. GROSSMARK: No. No. We were just talking about it over the last day or
two. Maybe you should look at it beforehand. *** It’s not been filed.”
Counsel for Clark Insulation said that he did not even have a copy of the proposed third
amended complaint. He also said that his agreement was contingent on plaintiff’s
representation that he was not removing anything from the complaint but merely adding a
survival count and a loss of consortium count. The court said, “Oh. Okay. Because I thought
once you speak, they’re going to come in tomorrow with a whole different kind of complaint.”
Counsel for plaintiff replied, “We wouldn’t do that, your Honor.” After that, discussion turned
to other matters, and the court did not return to the subject of whether plaintiff had permission
to file a third amended complaint.
¶ 21 Ferro Engineering argues that when the trial court said “Granted,” that was sufficient to
constitute leave to file plaintiff’s third amended complaint. However, the subsequent colloquy
reveals that even after the trial court made its statement, the parties were still openly discussing
the filing and the contents of the third amended complaint. Plaintiff had not prepared copies of
the proposed third amended complaint, let alone made them available to the court and to
opposing counsel. As a result, the court was somewhat confused as to what plaintiff was
actually intending to file. Most importantly, the court was unaware that plaintiff only intended
to add counts for survival and loss of consortium, while leaving the rest of the complaint intact.
(This confusion was evinced by the court’s expectation that plaintiff would “come in tomorrow
with a whole different kind of complaint.”) Counsel for Clark Insulation had to explain that his
agreement to the filing of the third amended complaint was contingent upon plaintiff’s
assertion that none of the allegations in the second amended complaint would be removed.
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Thus, in context, the trial court’s statement of “Granted” was not definitive, since the court and
the parties were still discussing upon what terms, if any, the filing of a third amended
complaint would be allowed.
¶ 22 Moreover, in any event, the trial court never directed that a written order did not need to be
prepared regarding the filing of the third amended complaint. See Ill. S. Ct. R. 271 (“When the
court rules upon a motion other than in the course of trial, the attorney for the prevailing party
shall prepare and present to the court the order or judgment to be entered, unless the court
directs otherwise.”); People v. Dylak, 258 Ill. App. 3d 141, 144 (1994) (“Rule 271 is a rule of
procedure and not a suggestion; counsel and courts alike are bound to follow it.”); People ex
rel. Person v. Miller, 56 Ill. App. 3d 450, 459-60 (1977) (court’s oral order was “not effective”
where defendant failed to subsequently provide a written order pursuant to Rule 271). Thus,
the lack of any written order in the record would seem to be dispositive.
¶ 23 Accordingly, the second amended complaint, as the last complaint whose filing was
permitted by order of the trial court, is controlling. Peoples, 96 Ill. App. 3d at 96 (where an
amended complaint is disregarded on appeal due to being filed without leave of court, the prior
complaint controls). Since, as noted, the second amended complaint incorporated and
realleged plaintiff’s counts against Ferro Engineering, plaintiff has not waived those claims on
appeal.
¶ 24 B. Exclusive Remedy Provisions of the Act and Workers’ Occupational Diseases Act
¶ 25 We therefore turn to the substantive issue in this case, namely, whether the trial court
correctly dismissed plaintiff’s counts against Ferro Engineering as barred by the exclusive
remedy provisions of the Act and the Workers’ Occupational Diseases Act. Plaintiff argues, as
he did before the trial court, that the exclusive remedy provisions do not apply because his suit
is “not compensable under the Act” (Meerbrey, 139 Ill. 2d at 467), in that any potential claim
under the Act was time-barred before he became aware of his injury. 2 We review the trial
court’s section 2-619 dismissal of plaintiff’s claims de novo. Kedzie & 103rd Currency
Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993). Our review of the trial court’s
construction of the Act and the Workers’ Occupational Diseases Act is also de novo. Toothman
v. Hardee’s Food Systems, Inc., 304 Ill. App. 3d 521, 525 (1999) (citing Bruso v. Alexian
Brothers Hospital, 178 Ill. 2d 445, 452 (1997)).
¶ 26 The Act is designed to provide financial protection to workers for accidental injuries
arising out of and in the course of their employment. Meerbrey, 139 Ill. 2d at 462 (citing
Pathfinder Co. v. Industrial Comm’n, 62 Ill. 2d 556 (1976)). The Act imposes liability without
fault upon the employer and, in return, prohibits employees from bringing common-law
actions against their employers. Meerbrey, 139 Ill. 2d at 462; see also Collier v. Wagner
Castings Co., 81 Ill. 2d 229, 237 (1980) (“ ‘So far as persons within the industry are concerned,
the Workmen’s Compensation Act eliminated fault as a basis of liability.’ ” (quoting Rylander
2
Because the Act and the Workers’ Occupational Diseases Act are homologous for purposes of
judicial interpretation (Handley, 124 Ill. App. 3d at 70), any exception to the exclusivity provision of
the Act would apply equally to the exclusivity provision of the Workers’ Occupational Diseases Act.
James v. Caterpillar Inc., 242 Ill. App. 3d 538, 549-50 (1993).
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v. Chicago Short Line Ry. Co., 17 Ill. 2d 618, 628 (1959))). To this end, the Act contains an
exclusive remedy provision, which reads as follows:
“No common law or statutory right to recover damages from the employer *** for
injury or death sustained by any employee while engaged in the line of his duty as such
employee, other than the compensation herein provided, is available to any employee
who is covered by the provisions of this Act ***.” 820 ILCS 305/5 (West 2010).
In a similar vein, section 11 of the Workers’ Occupational Diseases Act provides: “The
compensation herein provided for shall be the full, complete and only measure of the liability
of the employer bound by election under this Act and such employer’s liability for
compensation and medical benefits under this Act shall be exclusive and in place of any and all
other civil liability whatsoever ***.” 820 ILCS 310/11 (West 2010). The purpose of these
exclusivity bars is twofold: they are intended both to prevent double recovery and to prevent
the proliferation of litigation. Collier, 81 Ill. 2d at 241.
¶ 27 Nevertheless, the scope of these exclusivity bars is not absolute. Our supreme court has
explained that an injured employee may still bring a common-law action against his employer
if he can prove any of the following exceptions: (1) the injury was not accidental; (2) the injury
did not arise from his employment; (3) the injury was not received during the course of
employment; or (4) the injury is “not compensable under the Act.” Meerbrey, 139 Ill. 2d at
463; see also Collier, 81 Ill. 2d at 237.
¶ 28 In this appeal, plaintiff does not argue that his injury was not accidental. Nor does he
dispute the fact that his injury arose from and was received during the course of his
employment. Plaintiff’s sole argument is that the fourth Meerbrey exception, for injuries that
are “not compensable under the Act,” should apply to enable him to bring a common-law suit
against his former employer where any potential claim for recovery under the Act or the
Workers’ Occupational Diseases Act was time-barred before he became aware of his injury.
See 820 ILCS 305/6(d) (West 2010) (“In any case of injury caused by exposure to ***
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 310/1(f) (West 2010) (in cases of occupational disease caused by inhalation of asbestos
dust, a worker is entitled to compensation under the Workers’ Occupational Diseases Act only
if disablement occurs within three years of the worker’s last exposure). This is a case of first
impression in Illinois; no previous case has ruled upon whether a time-barred workers’
compensation claim is considered “not compensable under the Act” for Meerbrey purposes.
¶ 29 Thus, we turn to consider the meaning of the phrase “not compensable under the Act” as
used in Meerbrey and its progeny. Plaintiff urges us to find that an injury is not compensable
under the Act whenever a plaintiff, through no fault of his own, is barred from seeking
recovery under the Act. Ferro Engineering, meanwhile, argues that we should adopt a narrow
reading of the phrase and find that an injury is not compensable only if it does not arise out of
and in the course of employment.
¶ 30 Although the Meerbrey decision does not discuss in detail the meaning of compensability,
its text is still instructive. As noted, Meerbrey lists four distinct exceptions under which an
employee may bring a common-law cause of action against his employer: “(1) that the injury
was not accidental; (2) that the injury did not arise from his or her employment; (3) that the
injury was not received during the course of employment; or (4) that the injury was not
compensable under the Act.” Meerbrey, 139 Ill. 2d at 463 (citing Collier, 81 Ill. 2d at 237). It is
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therefore apparent that Ferro Engineering’s proposed definition of compensability would
render the fourth Meerbrey exception superfluous, since Meerbrey already contains explicit
exceptions for injuries that did not arise from a worker’s employment and injuries that were not
received during the course of employment. Meerbrey, 139 Ill. 2d at 463. We shall not interpret
our supreme court’s decision in such a way as to render part of it meaningless. See Orr v.
Edgar, 298 Ill. App. 3d 432, 442 (1998) (“It is fundamental that the appellate court does not
have the authority to abandon supreme court precedent.”).
¶ 31 Indeed, it is for this very reason that this court has, on multiple occasions, rejected Ferro
Engineering’s proposed definition of compensability and instead articulated a definition
related to plaintiff’s ability to recover under the Act. Toothman, 304 Ill. App. 3d 521; Schusse
v. Pace Suburban Bus Division of the Regional Transportation Authority, 334 Ill. App. 3d 960
(2002). We turn now to an examination of those cases.
¶ 32 In Toothman, several restaurant employees sued their employer for false imprisonment,
assault, and battery arising from an incident in which their managers strip-searched the
employees in an attempt to find missing money. Toothman, 304 Ill. App. 3d at 523-24.
Plaintiffs’ claimed damages consisted purely of emotional suffering; they had no medical or
hospital bills and did not take any time off work as a result of the incident. Id. at 531, 533.
Upon these facts, the Toothman court held that the plaintiffs’ alleged injuries were “not
compensable under the Act” for Meerbrey purposes and that the plaintiffs were therefore
entitled to bring a common-law action against their employer. Id. at 525. It based this decision
upon its finding that no compensation was available to the plaintiffs under the Act, since they
had no medical or hospital bills and did not take any time off work as a result of the incident.
Id. at 533; see Schusse, 334 Ill. App. 3d at 967 (the Act typically limits recovery to medical
bills, rehabilitation-related costs, and temporary or permanent, partial or total disability (citing
820 ILCS 305/8 (West 2000))).
¶ 33 The Toothman defendant, like the defendant in the instant case, argued that compensability
was not connected to recoverability and that an injury should be considered compensable
whenever it arose out of and in the course of employment. Toothman, 304 Ill. App. 3d at 534.
The court rejected this claim, stating:
“[I]f recoverability has no bearing on compensability, then the compensability prong of
the four-part test set forth in Meerbrey and Collier becomes meaningless. *** [I]f an
injury is compensable merely because it arose out of and in the course of employment,
then the fourth prong of the test serves no purpose. We will not interpret supreme court
precedent in such a way that any portion of the decision becomes meaningless.” Id.
Thus, the court concluded that, where plaintiffs’ injuries were of such a nature that they could
not recover under the Act, the fourth Meerbrey exception would apply to allow them to bring a
common-law suit against their employer.
¶ 34 The court reached a similar condition in Schusse, 334 Ill. App. 3d 960. In that case, the
plaintiff bus driver was injured on the job when his driver’s seat collapsed. Id. at 962. The
following year, his employer replaced the suspension system for the driver’s seat in the bus at
issue. Id. Subsequently, plaintiff brought suit against the manufacturers of the bus and the
driver’s seat. Id. He later amended his complaint to add a claim against his employer for
negligent spoliation of evidence. Id. at 963. The trial court dismissed the employer from the
action, finding that plaintiff’s suit against it was barred by the exclusivity provisions of the Act.
Id.
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¶ 35 The Schusse court reversed, finding that plaintiff’s spoliation claim was “not compensable
under the Act” under Meerbrey. Id. at 969. The court explained that, under Illinois law,
damages for spoliation are considered separate and distinct from damages for the underlying
injury. Id. at 966 (citing Fremont Casualty Insurance Co. v. Ace-Chicago Great Dane Corp.,
317 Ill. App. 3d 67, 75 (2000)). Thus, damages for spoliation are not recoverable under the
Act. Schusse, 334 Ill. App. 3d at 967 (citing 820 ILCS 305/8 (West 2000)). Accordingly, since
the plaintiff was, in fact, unable to be compensated under the Act, the Schusse court held that
his spoliation claim fell outside the Act’s exclusivity provision. Id. at 968-69. As in Toothman,
the court also squarely rejected defendant’s claim that all accidental injuries that arise out of
and in the course of employment should be considered compensable under the Act, stating: “If
an accidental injury is compensable merely because it arose out of and in the course of
employment, then the fourth prong of the Meerbrey test is superfluous. This court will not
interpret Meerbrey in such a way that the fourth prong becomes meaningless.” Id. at 969.
¶ 36 In the present case, as in Toothman and Schusse, plaintiff’s injury is quite literally not
compensable under the Act, in that all possibility of recovery is foreclosed because of the
nature of plaintiff’s injury. As discussed above, it is undisputed that any potential claim under
the Act was barred by the Act’s statute of repose long before plaintiff learned of his injury. The
Act provides a 25-year statute of repose for asbestos-related injuries, and the Workers’
Occupational Diseases Act provides a 3-year statute of repose for asbestos-related diseases,
while plaintiff’s mesothelioma was not diagnosed until 41 years after leaving the employ of
Ferro Engineering. Through no fault of his own, plaintiff never had an opportunity to seek
compensation under the Act. The same is true of any potential claim under the Workers’
Occupational Diseases Act. Under these facts, we hold that the fourth Meerbrey exception
applies to allow plaintiff to bring a common-law suit against his employer.
¶ 37 Such an interpretation of compensability is consistent with the purposes of the Act’s
exclusivity bar as explained by our supreme court in Collier, 81 Ill. 2d 229, a case which the
Meerbrey court cited with approval. The Collier court stated that the exclusivity bar is rooted
in the fear of double recovery and the desire to prevent the proliferation of litigation. Id. at 241.
In this case, there is no fear of double recovery, since plaintiff is barred from seeking any form
of recovery under the Act. For the same reason, permitting plaintiff to bring suit against his
employer in the circuit court will not cause the proliferation of litigation; he has but one avenue
to seek redress of his alleged injuries. Thus, plaintiff’s suit does not contravene the purposes of
the Act’s exclusivity provision, nor would barring his suit further those purposes.
¶ 38 The facts of Collier are instructive here, as they are essentially the converse of the facts in
the instant case. In Collier, the plaintiff brought an action against his employer, among others,
alleging that the company nurse failed to provide him proper assistance after he suffered a
heart attack while at work. Id. at 232-34. However, plaintiff had previously reached a
settlement agreement with his employer in which he released his employer from all liability
under the Act in exchange for a lump-sum payment. Id. at 234. The settlement was approved
by the Industrial Commission. Id. Under these facts, the Collier court found that the exclusivity
provision of the Act barred his suit, holding that “where an employee injured by a coemployee
has collected compensation on the basis that his injuries were compensable under the Act, the
injured employee cannot then allege that those injuries fall outside the Act’s provisions.” Id. at
241. Conversely, where an injured employee is affirmatively barred from seeking
compensation on the basis that his injuries were compensable under the Act, it is consonant
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with Collier that the employee be able to allege in court that his injuries fall outside the Act’s
provisions.
¶ 39 Notwithstanding the foregoing, Ferro Engineering cites Sjostrom v. Sproule, 33 Ill. 2d 40
(1965), and Unger v. Continental Assurance Co., 107 Ill. 2d 79 (1985), arguing that these cases
stand for the proposition that a “compensable” injury under the Act is synonymous with an
injury that arises out of or in the course of employment. As shall be discussed below, we
disagree that these cases are incompatible with the Meerbrey court’s delineation of
compensable injuries as separate from line-of-duty injuries. Moreover, we note that, even if
these cases were in conflict with Meerbrey, they would be superseded by the more recent
Meerbrey.
¶ 40 In Sjostrom, the plaintiff was injured in a car accident that occurred as he was being driven
to work by another employee, and he sued the other employee for his injuries. Sjostrom, 33 Ill.
2d at 41. The trial court directed a verdict for the defendant, finding that plaintiff’s suit was
barred by the exclusivity provision of the Act, and plaintiff appealed. Id. The sole question
raised on appeal was whether the plaintiff’s injuries arose out of or in the course of his
employment. There was no allegation that the injuries at issue were not accidental or were
otherwise outside the ambit of the Act. Within that limited context, the Sjostrom court stated:
“While [the Act’s exclusivity provision] refers to an employee ‘engaged in the line of
his duty’, it is applicable only if the injuries received are compensable, and the ‘line of
duty’ test is therefore construed as identical to the general test of compensability,
‘arise[s] out of and in the course of employment.’ ” Id. at 43 (quoting Christian v.
Chicago & Illinois Midland Ry. Co., 412 Ill. 171, 174 (1952)).
It is this statement upon which Ferro Engineering seeks to rely. However, under the particular
facts of Sjostrom, there was no real debate that, if plaintiff’s injury arose out of and in the
course of his employment, plaintiff would in fact be eligible to receive compensation under the
Act. It was in this context that the Sjostrom court made the above statement. The court did not
purport to state that all injuries that arise out of and in the course of employment are ipso facto
compensable under the Act. Indeed, any such statement would be directly contrary to
Meerbrey and Collier, which clearly set forth noncompensable injuries as a category separate
from injuries that do not arise out of or in the course of employment.
¶ 41 A similar analysis applies to Unger, 107 Ill. 2d 79, which, like Sjostrom, was decided
before the Meerbrey court reaffirmed lack of compensability as a distinct exception to the
Act’s exclusivity bar. In Unger, plaintiff brought suit against a company physician who failed
to properly diagnose a cancerous lesion during a company-sponsored physical examination. Id.
at 82. In considering whether plaintiff’s suit was barred by the Act, the Unger court stated that
“an employee is precluded from maintaining a common law action against a
co-employee only if the injured employee was ‘engaged in the line of his duty’ at the
time the injury was sustained. The ‘line of duty’ test has been interpreted by this court
in the exact manner as the general test of compensability under the Act.” (Emphasis in
original.) Id. at 85 (citing Sjostrom, 33 Ill. 2d at 43).
In this case, as in Sjostrom, the line-of-duty exceptions (i.e., the second and third Meerbrey
exceptions) were the only exceptions potentially at issue. By contrast, in the instant case, the
parties agree that plaintiff’s injuries arose out of and in the course of his employment but that
plaintiff is nevertheless statutorily barred from bringing a claim under the Act. It is this kind of
circumstance that was not contemplated by the Sjostrom and Unger courts but was provided
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for by the Meerbrey court when it explicitly stated that common-law suits against employers
were permitted for injuries that were not compensable under the Act. Meerbrey, 139 Ill. 2d at
463.
¶ 42 Ferro Engineering finally contends that, if we adopt plaintiff’s construction of Meerbrey
and the Act, it would lead to absurd results, in that any employee whose workers’
compensation claim was denied by the Industrial Commission would be free to bring a suit
against his employer. We disagree. Our holding is confined to the specific fact pattern before
us today, in which an injured employee’s potential claim under the Act is time-barred before he
ever learns of it, thus necessarily depriving him of any potential for compensation under the
Act.
¶ 43 In this regard, we note that other states have adopted the position urged by plaintiff in this
action, and defendant has not pointed to any absurd or otherwise problematic consequences
resulting therefrom. For instance, in Gidley v. W.R. Grace & Co., 717 P.2d 21 (Mont. 1986),
the Montana Supreme Court held that where an employee was not eligible for compensation
under the then-Montana occupational disease act (MODA) because the period of limitations
expired before he became aware of his injury, that employee was not subject to MODA’s
exclusivity provisions but had a common-law right of action against his employer. See also
Nelson v. Cenex, Inc., 2008 MT 108, ¶ 33, 342 Mont. 371, 181 P.3d 619 (where employee was
diagnosed with asbestos-related lung disease past the deadline for filing a claim for
occupational disease benefits, Supreme Court of Montana held that, under Gidley, he had a
right to bring suit against his employer). Similarly, in Tooey v. AK Steel Corp., 81 A.3d 851,
855 (Pa. 2013), the Supreme Court of Pennsylvania held that claims for occupational disease
which manifested outside the 300-week period prescribed by the Pennsylvania Workers’
Compensation Act (PWCA) did not fall within the purview of the PWCA, and, therefore, that
the exclusivity provision of the PWCA did not preclude injured employees from filing
common-law claims against their employers. Defendant argues that these cases are not directly
applicable to the case at hand, since they involve different statutory language than the Illinois
statutes at issue here. Nevertheless, they are still persuasive as to their result, insofar as they
show that other states have chosen to give injured employees a remedy via the courts when
their claims are time-barred under applicable workers’ compensation statutes.
¶ 44 Thus, for the foregoing reasons, we reverse the judgment of the trial court, insofar as we
find that plaintiff’s suit against Ferro Engineering is not barred by the exclusivity provisions of
the Act and the Workers’ Occupational Diseases Act, and we remand for further proceedings.
Because of our resolution of this issue, we need not consider plaintiff’s claim that, if the Act
and the Workers’ Occupational Diseases Act were to bar him from bringing suit, such
provisions would be in violation of his rights under the Illinois constitution. See People v.
Alcozer, 241 Ill. 2d 248, 253 (2011) (courts will avoid the adjudication of constitutional issues
where a case can be decided on other grounds).
¶ 45 Reversed and remanded.
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