Folta v. Ferro Eng'g, No. 1–12–3219.

• Court: United States Appellate Court of Illinois
• Writing for the Court: Justice TAYLOR delivered the judgment of the court, with opinion.
• Citation: 14 N.E.3d 717
• Parties: Ellen FOLTA, Individually and as Special Administrator of the Estate of James Folta, Deceased, Plaintiff–Appellant, v. FERRO ENGINEERING, a division of ON Marine Services Company, Defendant–Appellee.
• Docket Number: No. 1–12–3219.
• Decision Date: 27 June 2014

14 N.E.3d 717

Ellen FOLTA, Individually and as Special Administrator of the Estate of James Folta, Deceased, Plaintiff–Appellant
v.
FERRO ENGINEERING, a division of ON Marine Services Company, Defendant–Appellee.

No. 1–12–3219.

Appellate Court of Illinois, First District, Fifth Division.

June 27, 2014.

14 N.E.3d 718

Nicholas J. Vogelzang, of Connelly & Vogelzang, LLC, of Chicago, 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.

14 N.E.3d 719

OPINION

Justice TAYLOR delivered the judgment of the court, with 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., Inc., 139 Ill.2d 455, 467, 151 Ill.Dec. 560, 564 N.E.2d 1222 (1990). The trial court granted Ferro Engineering's motion to dismiss, and plaintiff now appeals. For the reasons that follow, we reverse and remand.

¶ 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

14 N.E.3d 720

(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, 79 Ill.Dec. 457, 463 N.E.2d 1011 (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 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.

14 N.E.3d 721

¶ 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, 361 Ill.Dec. 1, 970 N.E.2d 1.

¶ 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, 216 Ill.Dec. 550, 665 N.E.2d 808 (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...