By: Timothy Furman
Illinois Senate Bill 1596 recently passed both houses and is on Gov. Pritzker’s desk for signature. The bill would amend the Illinois Workers’ Compensation Act to allow employees to sue their employer in civil tort actions for a latent injury (one that does not immediately present itself or which actually develops at a later time). Specifically the bill states:
Subsection (a) of Section 5 and Section 11 do not apply to any injury or death resulting from an occupational disease, 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 occupational disease—the employee, the employee’s heirs and any person having standing under the law to bring a civil action, 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.
The bill also effectively overturns Folta v. Ferro Engineering, 2015 IL 118070, wherein the Illinois Supreme Court ruled that latent injury claims that were otherwise compensable, were barred when filed outside the allowable statute of repose. The Folta court held that would-be plaintiffs were barred from bringing civil actions in said claims by the exclusivity rule of the Illinois Workers’ Compensation Act and Workers’ Occupational Disease Act.
To be clear, the bill does not seek to extend the current 25 year statute of repose, but instead allows civil suits to be filed in latent injury cases after the current statute of repose. This proposed exception would not be the first of its kind. The exclusive remedy provision does not currently apply to several situations, including intentional torts by the employer or where an employer does not have workers’ compensation insurance.
However, Senate Bill 1596 would cause significant issues for Illinois employers if signed into law. The Illinois Association of Defense Trial Counsel (IDC) has issued a letter urging Gov. Pritzker to veto the bill. In its letter, the IDC states:
All general liability insurance policies have a standard exclusion for claims by an employee, and all workers’ compensation policies have a standard exclusion for any civil claims against the employer. The practical effect of this bill is to subject Illinois employers to unlimited liability for employees’ latent injury claims, and at the same time, strip Illinois employers of their insurance for such claims. It would be manifestly unjust to do so.
The proposed litigation is politically left-leaning as it seeks to offer plaintiffs additional recovery avenues and greater awards (by avoiding the workers’ compensation system). The political gain sought by the bill’s creators will likely be overshadowed by a significant downturn in companies willing to continue operating in Illinois under the new law.
- Review both your casualty and workers’ compensation policies to ensure that you are adequately covered;
- Explore your carrier’s endorsement options as soon as possible;
- Have a complete and thorough record of any and all materials, chemicals, etc. that have ever been used by your business to increase your preparedness and build a defense for any potential suit that could emerge years down the road.