specially concurring:
Justice Knecht’s opinion is based upon the assumption that loss of consortium is not included in benefits received by Janis Schrock under the workers’ compensation monthly payment. Black’s Law Dictionary defines consortium as follows:
“Conjugal fellowship of husband and wife, and the right of each to the company, co-operation [sic], affection, and aid of the other in every conjugal relation. [Citations.]
The term includes the exclusive right to the services of the spouse, and to his or her society, companionship, and conjugal affection.” Black’s Law Dictionary 382 (4th ed. 1968).
In Tjaden v. Moses (1968), 94 Ill. App. 2d 361, 365, 237 N.E.2d 562, 565, the court declared a wife’s right of action for loss of consortium “a separate and distinct action although dependent upon the liability *** for the injuries to the husband.” However, the majority opinion in Dini v. Naiditeh (1960), 20 Ill. 2d 406, 170 N.E.2d 881, which recognized a woman’s right to a cause of action for loss of consortium, contained the following statement:
“This argument emphasizes only one element of consortium— the loss of support. Consortium, however, includes, in addition to material services, elements of companionship, felicity and sexual intercourse, all welded into a conceptualistic unity. (Montgomery v. Stephan [(1960), 359 Mich. 33, 101 N.W.2d 227]; Hitaffer v. Argonne Co. [(1950), 183 E2d 811,] 814.) Consequently, in this action the wife is not suing for merely loss of support, but for other elements as well.” (Dini, 20 Ill. 2d at 427, 170 N.E.2d at 891.)
While this statement appears to include loss of income in the term “loss of consortium,” I conclude that such an interpretation is erroneous. The Dini opinion indicated that historically the right to loss of consortium was reserved to the husband, and this was at a time when the women were more likely to be homemakers not employed outside the home.
In determining that “loss of consortium” does not include loss of income, I conclude, as did Justice Knecht, that loss of consortium is not a part of workers’ compensation payments. As compensation for loss of consortium is not included in workers’ compensation payments to Janis, I conclude that it escapes logic to hold the employer can obtain a lien against a possible recovery for loss of consortium by using the authority under section 5(b) of the Act. How can an employer recover benefits the employer does not pay?
It would seem that since the loss of consortium is not included in workers’ compensation, an award for loss would not result in double recovery if the employer is deprived of the right of a lien against any judgment Janis might obtain. This does not answer the question of whether defendants Shoemaker and Goldfarb can obtain contribution from the employer.
Shoemaker and Goldfarb are seeking contribution for an alleged loss which is not being paid by workers’ compensation benefits. Why should the employer not be subject to the unlimited right of contribution as set forth in Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437, and Doy W. The answer is that unlimited contribution should not be allowed because the employer may be forced to pay too much, thereby losing protection supposedly provided under the Act. (See Kotecki, 146 Ill. 2d at 163-65, 585 N.E.2d at 1027.) I recognize Kotecki was not concerned with an element of damage not included in the compensation award.
Under section 5(a) of the Act, the limitation of actions against the employer for “common law or statutory right to recover damages from the employer” extends to “any one wholly or partially dependent upon” the employee. (Ill. Rev. Stat. 1991, ch. 48, par. 138.5(a).) This limitation is broad and I conclude that it does include the common-law right to recovery for loss of consortium, even though the loss of consortium is not a part of workers’ compensation payments. The insuring aspect of the Act is a valuable social benefit and the benefit adequately compensates for limitations placed upon contribution from the employers. I conclude here, even though any judgment against defendants will be for loss of consortium, the employer’s liability for contribution is limited to the employee’s compensation liability. A decision to the contrary would depreciate the benefit employers receive in exchange for absolute liability for injuries during employment.