Petitioners who develop certain latent injuries, such as asbestos exposure or other toxic substances, may now file a civil suit directly against their employer in some instances, according to a new bill, Senate Bill 1596, signed into law by Illinois Governor JB Pritzker on May 17, 2019. The new law is in response to the Illinois Supreme Court’s decision in Folta v. Ferro Engineering, and provides that a petitioner who develops an illness from exposure to certain toxins, such as asbestos, can now file a civil lawsuit against their employer beyond 25 years after the petitioner was exposed to the toxic substance.
Previously, the Illinois Supreme Court held in Folta that a petitioner could not bring a civil lawsuit against their employer for occupational diseases based on the exclusive remedy provision under the Illinois Workers’ Compensation Act. The Court also recognized that the Act provided limitations periods in which a petitioner could file a workers’ compensation claim – specifically, that a petitioner could only file a workers’ compensation claim for asbestos exposure within 25 years after the petitioner was exposed or 3 years after death of the petitioner. However, the new law allows a petitioner file a civil suit against their employer beyond the 25-year exposure limitation – which previously would have been barred by the statute of repose.
The new law allows the petitioner or their heirs to file a civil suit directly against the employer in circumstances that were previously barred by the 25-year statutory limitation. Specifically, employers may now be sued civilly (with potentially large jury verdicts) if a petitioner develops a work-related, asbestos-induced illness beyond 25 years of exposure. In other words, the new law creates an exception to the Illinois Workers’ Compensation Act, allowing civil lawsuits to be brought against employers in latent injury cases.
This statute raises the issue of what insurance policy may provide coverage for the employer for these civil suits. The suits would be based on latent injuries that arose out of and in the course of employment. Most general liability (CGL) polices exclude injuries that arise out of and in the course of employment. As the civil lawsuit will be filed in Circuit Court and not before the Illinois Workers’ Compensation Commission, an Employers Liability policy may provide coverage for these suits. The coverage for these suits will be based on the facts of a particular case and the Employer’s specific policy provisions.