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Asbestos pokes its long nose out from under the workers comp tent

Judgments in two recent court cases held that long-tail asbestos claims are not subject to the comp bar.

A very good friend who spends most of his time dealing with asbestos claims for a very large carrier shared this with me in a recent email.  Here’s how he put it:

If this contagion were to spread (and that depends very much on the precise wording of the comp statutes in each state), a lot of employers who might have believed that they were protected by the comp bar will find themselves defendants in lawsuits brought by former employees, which raises lots of questions about the applicability of their GL or EL coverage, assuming they had it and can identify the insurers.  [emphasis added]

The two cases are Tooey v AK Steel Corp et al., 81 A.3d 851 (Pa. 2013) in Pennsylvania and  Folta v. Ferro Engineering, 2014 Ill. App. LEXIS 444 in Illinois.

In Tooey, the PA Supreme Court ruled that the exclusivity provisions of the Pennsylvania Workers’ Compensation Act did not bar former employees alleging asbestos exposure from bringing lawsuits against their former employers when the asbestos related disease didn’t appear until after the time limit for filing for statutory work comp benefits had ended – which is 300 weeks in PA.

In Folta, an Illinois appeals court used the Tooey citation in revisiting an asbestos injury suit filed by an alleged victim who wasn’t diagnosed with an asbestos-related disease until 41 years after leaving his employment.

There’s a lot of legal detail involved including determining which statute takes precedence, however the likelihood that the Courts’ rationales are not likely to be limited to asbestos claims may well be the most significant.

What does this mean for you?

This strikes me as one of those things that could either be very, very meaningful.  What think you?

One thought on “Asbestos pokes its long nose out from under the workers comp tent”

  1. Just a note on the Tooey case. The statutory bar of filing a WC claim after 300 weeks made no provision for “long tail” occupational diseases. I believe the court’s thinking was that if the WC claim is time barred (not merit barred) there is in effect no WC claim and therefore an absence of redress of grievance, giving the door open to a tort remedy.

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Joe Paduda is the principal of Health Strategy Associates



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