Section 5(a) of the Illinois WC Act was recently amended, removing the exemption from civil liability of “any service organization retained by the employer . . .to provide safety service, advice or recommendations for the employer.”  The new law now allows an injured worker to sue such an entity, unless the entity is “wholly owned by the employer, his insurer or his broker.”

For example subsequent to this amendment, if a safety service company goes onsite and makes recommendations in a factory as to machine placement, guards, flooring surfaces, etc. so as to avoid worker injures, a worker at a company to which the safety service company provided service can now civilly sue the safety service company when they are hurt because of alleged negligence in the provision of those services. The injured worker could not sue the safety service company if it is wholly owned by the employer, insurer or broker.

These issues were discussed shortly before the amendment in the Mockbee case, in which our office was involved, where the claimant was injured when she fell into a vertical manlift that was surrounded by a railing on only two sides.  The plaintiff sued two companies that were involved in service and maintenance of the manlift, on the basis that they performed inspections and made recommendations regarding safety aspects of the lift’s operation.  The trial court granted summary judgment against one defendant on the basis that its involvement ended following its inspection and report in 1991, when the configuration of the manlift was different than at the time of the accident in 2002, and summary judgment for the other defendant on the basis that the unguarded floor opening around the manlift into which the claimant fell was open and obvious.

On plaintiff’s appeal to the appellate court, the court took up an issue raised only by the second defendant in the trial court, and ignored by the trial judge, that it was immune from liability as a safety service organization under section 5(a) of the Act.  The other defendant joined in this argument on the appeal, and the court upheld the dismissal of both defendants, but on the basis of the immunity provided in section 5(a).

The Court noted the plaintiff’s argument that only entities that contribute to the worker’s compensation system, such as employers, insurers, etc, should enjoy the benefit of the immunity of section 5(a), but stated that if the legislature intended that, then they could have written that qualifier into section 5(a).  The Court then noted other states that have specifically done that, such as providing immunity to safety consultants that furnish safety services “incidental to the workers’ compensation or employers’ liability coverage.”  The Court cited statutes from three states that have similar provisions, and said if Illinois intended to limit the immunity like that, the General Assembly could have written that into section 5(a).

As we now see, the Illinois General Assembly has responded and amended section 5(a) as indicated above, limiting the immunity to safety services provided by a company “wholly owned by the employer, his insurer or his broker and that provides safety service, advice or recommendations for the employer or the agents or employees of any of them. . . ”

As such, in Illinois, if an insurance company were to hire an outside safety service company to provide services for an insured, that company would not be immune from civil suit by the injured worker under the amended section 5(a), as it is not wholly owned by the insurance company.  The insurance company, on the other hand, would still be immune as the employer’s insurer.

If the insurance company has its own safety department to perform these tasks, it remains immune from civil liability as it is the insurer providing these services.  Likewise, a broker that provides these services with its own employees, or wholly owns such a company, retains its immunity from civil liability.

In short, we will now possibly see more litigation stemming from workplace injuries against companies that provide safety services, advice or recommendations to employers, but employers, insurers and brokers themselves retain the exclusive remedy protection they always had.  The new battleground will be likely be confined to whether safety services provided by these entities come from its employees and wholly owned entities (immune from civil liability) or separate companies that provide these services (likely not immune).

Should you have any other questions, please contact Attorney Jack Shanahan, who was involved with the Mockbee case on behalf of Inman and Fitzgibbons