Plaintiffs’ Bar Drives Passage of Legislation to Eliminate Exclusive Remedy Defense to Illinois Employers

The Asbestos Plaintiffs’ Bar wasted no time after the inauguration of a Democratic Illinois Governor to introduce legislation in both the Illinois House and Senate to override the Illinois Supreme Court’s decision in Folta v. Ferro Engineering, 2015 IL 118070 (2015), where the Court held that the Worker’s Compensation Act and Occupational Diseases Act was the exclusive remedy to Illinois employees who suffered latent injuries such as mesothelioma.  Ed Matushek wrote the position paper of the Illinois Association of Defense Trial Counsel opposing this legislation, and testified before the Illinois Senate Judiciary Committee on Tuesday, March 5, 2019 in opposition.  Ignoring the fact that SB 1596 is a radical change in Illinois public policy, the Senate Judiciary Committee immediately voted 8-2 to call to bill in the Senate, who rammed the bill through the next day on a strict party line vote of 41-16 with minimal debate and sent SB 1596 to the House on the same day for First Reading.  The bill was assigned the next day to the Commercial Law Subcommittee of the House Judiciary – Civil Committee, and set for hearing on Wednesday morning, March 13, 2019.  Ed Matushek again appeared to testify in opposition. The Subcommittee also ignored the fact that there was a reasonable alternative to enacting such a bill, and voted 5-2 to pass the bill to the Judiciary Committee, which voted again along party lines, 8-4-1, to pass the bill to the House, which placed it on third reading the next day and immediately voted to approve, again along party lines, 70-40-1, without addressing an alternative to keep such claims in the worker’s compensation system. The bill now awaits the Governor’s signature.

SB 1596 purports to be a bill that helps workers who have developed latent illnesses or injuries after coming in contact with asbestos or other toxic substances in the workplace.  In reality, it is impermissible Special Legislation that will eliminate strict liability of employers for these injuries under the long-established worker’s compensation system and increase the threshold of proof required by a special class of injured worker in order to obtain a recovery.  SB 1596 also doubles the amount of attorneys’ fees that will be paid by the injured worker from the statutory 20% under the worker’s compensation system by removing the worker’s claim against the employer to the civil tort system, where the trial lawyers can assess their attorneys’ fees at 40% of the recovery.  Not surprisingly, the sponsors of the bill are heavily financed by campaign contributions from the Illinois Trial Lawyers Association PAC and individual trial lawyer contributions, as are the legislators who have voted in favor.  Indeed, campaign contributions by trial lawyers to Illinois politicians and judges total nearly $40 million during the past 17 years.

Urge the Governor to veto Senate Bill 1596 

The Illinois Association of Defense Trial Counsel, an organization whose members are committed to protecting and improving civil justice in Illinois, opposes SB 1596 which would create an exception to the workers’ compensation system allowing civil actions to be brought against Illinois employers in latent injury cases.

An appropriate alternative to achieve the legislative goal of recovery for the injured employee would have been to lengthen the statute of repose period for latent injury claims, and keep the worker’s recovery in the longstanding system of Illinois worker’s compensation. That is not what SB 1596 does, however. Removing the exclusive jurisdiction of such claims from the Illinois Worker’s Compensation Commission will have unintended consequences that will hurt the very constituents the Legislature seeks to assist by creating unlimited liability for Illinois employers in the civil tort system for such claims, and have the practical effect of eliminating existing insurance coverage for such claims.  This will drive even more Illinois business out of state or into bankruptcy protection.

SB 1596 ignores the rationale for the exclusive remedy provisions of the Illinois Workers’ Compensation Act and the Workers’ Occupational Diseases Act. The Acts impose liability without fault upon the employer and, in return, prohibit common law suits by employees against the employer. The exclusive remedy provision found in the Acts “is part of the quid pro quo in which the sacrifices and gains of employees and employers are to some extent put in balance, for, while the employer assumes a new liability without fault, he is relieved of the prospect of large damage verdicts.

Reasonable legislation would have extended the length of the twenty-five repose period under the Acts and keep the employee’s remedy in the worker’s compensation system. Instead, this Bill places recovery for such injury in the civil tort system, where the worker relinquishes the advantage of strict liability of the employer, and as a practical matter, doubles the amount of attorneys’ fees that will be paid by the injured worker. Most importantly, all Illinois employers will be surprised to find that they are suddenly uninsured for claims under this law – all General Liability Insurance policies have a standard exclusion for claims by an employee, and all Worker’s Compensation policies have a standard exclusion for any civil claims against the employer.  The practical effect of these bills 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 is manifestly unjust to do so, and a shame that our Legislators merely vote in lock step without regard for the consequences.  SB 1596 will adversely affect the Illinois economy, and likely reduce or eliminate the likelihood of a viable recovery by the injured worker, defeating the supposed purpose for this legislation.

To contact the Governor’s Office, please use the following information via the State Web site:

https://www2.illinois.gov/sites/gov/contactus/Pages/VoiceAnOpinion.aspx

or call the Office of the Governor to express your opinion on SB 1596:

Governor’s Office of Constituent Affairs Help Line:

• Phone: 217-782-0244