Hepler Broom, LLC

Illinois Mesothelioma Case Dismissed Based on Exclusive Remedy Provision

January 26, 2021

by Alex Belotserkovsky

In one of the first orders issued in 2021, Judge Stephen Stobbs granted summary judgment in favor of two HeplerBroom clients in the Sidney Keyes, Sr. case.

The Case

Mr. Keyes, a one-time employee of the Defendants’ alleged predecessor, passed away after suffering from mesothelioma, which his estate alleged was caused, at least in part, by exposure to asbestos while on the job. HeplerBroom filed a motion for summary judgment arguing its clients should be dismissed from the case based on the “exclusive remedy” provision of Maryland’s Labor and Employment Code.

For purposes of the motion for summary judgment, the parties did not dispute that Mr. Keyes was Defendants’ employee from 1956 to 1998 at a facility in Cambridge, MD. The parties also were in agreement for the purposes of the motion that: 1) Mr. Keyes’ last alleged exposure to asbestos occurred while he was employed by the Defendants; 2) this last alleged exposure occurred at least into the 1990s, and as late as 1998; 3) Maryland’s Labor and Employment Code applied to Plaintiff’s claims regarding Mr. Keyes’ disease and death; and 4) Defendants procured workers’ compensation insurance for the years 1982-1998.

Section 9-509(b) of the Maryland Labor and Employment Code provides “… the compensation provided under this title to a covered employee or the dependents of a covered employee is in place of any right of action against any person.” Plaintiff argued that two of the exceptions to Section 9-509 applied in this case.

Analysis of Arguments and Ruling

First, Plaintiff argued that Defendants were not protected by the exclusive remedy provision in Section 9-509(b) because they could not prove their predecessor maintained workers’ compensation insurance for Mr. Keyes during the entire time of his employment.

The Court did not agree with Plaintiff’s argument because Section 9-509(c) of the Maryland Labor and Employment Code provides only that the “exclusive remedy” provision of the statute would not be applicable where an employer failed to maintain workers’ compensation insurance. Nowhere in the text of the statute does it require an employer to provide proof of coverage for all the years the employee was employed.

The Court noted that the statute defines the liable employer as “the employer in whose employment the covered employee was last injuriously exposed to the hazards of exposure of asbestos,” and the insurer for the occupational disease was “the insurer liable for the risk when the covered employee, while employed by the employer, was last injuriously exposed to the hazards of the occupational disease.”

Further, the Plaintiff could not produce any case law or statute requiring an employer to provide proof of insurance for all the years an employee was employed. The Court found that Defendants’ proof that there were workers’ compensation insurance policies covering their employees for the years 1982 to 1998 provided sufficient evidence of compliance with Maryland’s Code. The Court concluded that the exception to the exclusive remedy provision of the Maryland statute based on failure to secure compensation for covered employees did not apply.

The Plaintiff also argued the applicability of Section 9-509(d) of the Maryland Labor and Employment Code, which provides that the Code’s exclusive remedy provision does not apply “[i]f a covered employee is injured or killed as the result of the deliberate intent of the employer to injure or kill the covered employee.”

The Plaintiff argued, despite testimonial evidence to the contrary, that her allegations that Defendants’ failure to provide asbestos training and masks which sealed properly, properly cover insulated pipes, and warn employees regarding asbestos hazards amounted to “intentional acts” covered by the Section 9-509(d) exception. The court rejected the notion that any of these alleged omissions constituted intentional acts within the meaning of the statute. The Court held that the “intentional act” exception in the Maryland Code did not apply and granted Defendants’ motion for summary judgment based on the ”exclusive remedy” provision of the Maryland Labor and Employment Code.

The Takeaway

In toxic tort cases with exposure allegations against an employer, careful review of the workers’ compensation statute of the state(s) where the alleged exposure occurred is an important step in defending the clients’ interests. Judge Stobbs will apply another state’s law in this situation and will grant a motion for summary judgment based on the exclusive remedy provisions of a state’s workers’ compensation statutes if a defendant can show that it fulfilled the requirements necessary to entitle it to the statutes’ protections. This step also helps to make sure that the plaintiffs do not pursue their claims in a system that is different from the one anticipated by the state where the exposure allegedly occurred.

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