In a victory for the asbestos defense bar, Randy Smith and Mike Martinez of Matushek Nilles LLC secured summary judgment for Brand Insulations, Inc. in the case of Rex Hill (Morgan County, Illinois; Case No. 13 L 21). Randy and Mike convinced Judge Christopher R. Reif to reject a novel attempt by the plaintiff to circumvent and nullify the effect of Folta v. Ferro Engineering by pursuing claims of secondary exposure between coworkers.
In this case of first impression, the plaintiff, Rex Hill, worked as a union insulator employed by Brand Insulations for several years in the late 1960s and early 1970s. Plaintiff conceded there was no viable claim for direct exposure against his employer Brand because of the Supreme Court’s Folta decision, but sought to pursue an alternative claim against Brand for secondary exposure through contact with his father, Don Hill, who also worked as an insulator for Brand.
The alleged secondary exposure occurred during the time period that both Mr. Hill and his father were working together for Brand. Nonetheless, plaintiff argued his secondary exposure claim was not barred by the exclusive remedy provision because the secondary exposures occurred away from the jobsite, such as while sharing a vehicle together over the course of several months and during frequent visits to his father’s home on weekends. Plaintiff also presented the expert testimony of Dr. Arthur Frank, who opined that Mr. Hill would have been secondarily exposed to Brand’s asbestos through the process of “re-entrainment” any time he visited his father’s home for several decades after they last worked together for Brand.
Although the alleged inhalation of Brand’s asbestos occurred away from the jobsite, Brand’s counsel succeeded in convincing Judge Reif that the alleged secondary exposure “arose out of” and occurred “in the course of” Mr. Hill’s employment with Brand because the alleged injury-causing agent originated in Mr. Hill’s employment with Brand, and his alleged injury was the result of a risk connected with, or incidental to his employment with Brand. Brand also argued that anything short of outright rejection of plaintiff’s secondary exposure theory would nullify the intent of the Illinois Supreme Court in Folta that rejected an exception to the exclusive remedy provision for asbestos-related injuries.
Under Mr. Hill’s theory, the plaintiff in Folta would have been able to avoid summary judgment against Ferro Engineering by arguing that he was secondarily exposed to Ferro’s asbestos through myriad potential out-of-work interactions with fellow Ferro employees; including commuting to and from work with one another, visiting a co-worker’s home or getting a drink together after work. Since every asbestos-exposed worker could come up with some type of out-of-work interaction with coworkers to allege secondary exposure, we argued that recognizing such a cause of action would essentially overrule Folta and subject Illinois employers to virtually limitless liability. In addition to finding in favor of Brand on this matter of first impression, Judge Reif also agreed with Brand that, under the facts shown, Brand owed Mr. Hill no common law duty of care with respect to his secondary exposure claim.