Loophole in Missouri Law Puts Employers at Risk for Occupational Disease Lawsuits

Employee Lawsuits Are Expected to Increase

Missouri employers, including small- and mid-sized companies, should be aware of a loophole in Missouri law putting companies at risk for lawsuits filed by current and former employees who claim they contacted an occupational disease, such as asbestosis, mesothelioma, mold allergies, cancers or other illnesses, during the course of their employment.

Increasing numbers of plaintiffs’ occupational disease cases are expected to be filed against Missouri employers in 2011. These lawsuits are part of a new trend of legal actions against employers who wrongly believe that their company’s workers’ compensation insurance covers occupational disease claims when in fact it does not, leaving such companies substantially at risk for potentially enormous financial damage claims in court actions.

Proposed changes to the state’s workers’ compensation law that would have affected employee occupational disease claims did not pass in the legislative session that ended May 13, 2011. One result is that plaintiffs’ attorneys are now preparing actions against employers on behalf of persons claiming they became ill during the course of employment, even if their employment with a company ended years ago.

This new legal scenario comprises a serious threat to employers across Missouri. Employers engaged in construction, environmental services, industrial assembly, manufacturing, mining, reclamation services, retail, salvage or other work whose processes currently involve or previously involved the use or presence of asbestos, chemicals, lead or other potentially carcinogenic, hazardous and toxic substances are at risk for occupational disease-related legal actions and damage claims by current and former employees and their attorneys.

Although this situation is new, its basis dates back more than 50 years. Starting in the late 1950s, the law permitted employees to file claims for occupational diseases under workers’ compensation. Financial awards for valid claims of occupational disease were based on workers’ comp formulas and, thus, amounted to much less than financial awards that might be gained in a court action.

Generally speaking, occupational diseases are those manifesting over time due to prolonged chemical, substance, or material exposure that can cause death, abnormalities, disease, mutations, cancer, deformities, or reproductive malfunctions in a human if consumed, inhaled, or absorbed by a human or when otherwise entering the human body in sufficient quantities to do so. Unlike accidents that happen in the workplace, occupational diseases cannot be traced to any specific incident, time or place.

An Unintentional Exclusion

In 2005, the Missouri legislature modified the state’s workers’ comp law, but the specific term “occupational diseases” was unintentionally excluded from those 2005 changes to the law with the result that occupational diseases could no longer be claimed under workers’ compensation and employers could be sued in civil court by employees and former employees or their families filing for financial damages.

In an unrelated case in 2009, the Missouri Supreme Court noted that occupational diseases were not covered by the exclusivity provision of the Missouri’s workers’ comp statute. A number of plaintiffs’ attorneys in Missouri noted this discrepancy; although previously they had never sued employers for occupational disease-related cases such as asbestosis and mesothelioma, they sued Missouri employers on behalf of clients who were seriously ill or families of persons who had died allegedly from an occupational disease.

In Franklin v. CertainTeed Corp., wherein the plaintiffs claimed exposure to asbestos in a pipe manufacturing plant, the defendants argued to have the case dismissed because asbestos exposure was an occupational disease under jurisdiction of the Missouri Division of Workers’ Compensation. But the plaintiffs’ attorney argued that the 2005 revision to the workers’ compensation statute removed occupational disease claims from the workers’ compensation system.

The Missouri Court of Appeals-Eastern District of Missouri ruled on the case in 2010 and agreed that occupational diseases are not the exclusive domain of workers’ compensation and that damages against employers can be pursued in civil court actions. The plaintiffs and the defendants soon agreed to settle.

The 2009 Missouri Supreme Court ruling and the 2010 Missouri Court of Appeals decision have prevailed in occupational disease lawsuits filed in Missouri and Illinois since Franklin v. CertainTeed Corp., and plaintiffs have received millions of dollars in settlements.

In February 2011, the Missouri House of Representatives passed a bill that would have returned occupational disease claims to the purview of the workers’ compensation law. Missouri Senate deliberations about its own version of the proposed new legislation concerning occupational diseases were incomplete when the Missouri General Assembly adjourned on May 13, and proposed changes to the workers’ comp statute went nowhere. This has had the effect of “widening the legal loophole” that has existed since 2005 .

Concerned employers in Missouri should take steps to identify their potential risks for occupational disease-related legal action by:

• Evaluating the extent of their in-force insurance coverage, including workers’ compensation coverage, liability policies and other policies that may or may not cover instances of occupational disease and related legal actions and/or damage claims;
• Identifying chemicals and other substances currently used or previously used by the company, or present within the company’s work environments, that may have had or currently have the potential to cause long-term harm or disease.
• Consulting an attorney experienced in environmental and commercial litigation, products liability, toxic tort, pharmaceutical, environmental, insurance and commercial litigation, with related trial experience, to identify potential legal risk and evaluate potential courses of defensive action.

Topics Lawsuits Claims Commercial Lines Workers' Compensation Business Insurance Pollution Missouri