dissenting:
Because I conclude that, in Illinois, a loss-of-consortium claim is a separate and independent claim belonging solely to the deprived spouse and is not subject to the defenses available to a defendant against a claim of the injured spouse, I dissent.
Loss of consortium is “based not on an injury to the [deprived spouse’s] person but on an injury to a personal relationship established by the marriage contract.” (Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 162.) “[Although actions for personal injuries and actions for loss of consortium may derive from the same operative facts, they are legally distinct.” Mitchell, 58 Ill. 2d at 163.
Whether the comparative negligence of an injured spouse is or is not imputable to a deprived spouse’s loss-of-consortium claim is one of first impression in this State. The majority is correct in noting that the opinions of this court in Brown v. Metzger (1984), 104 Ill. 2d 30, Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, and Page v. Hibbard (1987), 119 Ill. 2d 41, did not directly answer the question whether a loss-of-consortium claim must be reduced by the amount of comparative negligence on the part of an injured spouse. I agree with the appellate court in Erickson v. Muskin Corp. (1989), 180 Ill. App. 3d 117, however, that these cases are “indicative of a shift away from the pre-Alvis [Aims v. Ribar (1981), 85 Ill. 2d 1] concepts that all contributory negligence of an injured spouse was imputed to the spouse claiming loss of consortium.” (Erickson, 180 Ill. App. 3d at 130.) I agree.
In Brown, this court held the release in settlement by an injured spouse in a personal injury action would not operate as a defense to the deprived spouse’s independent cause of action for loss of consortium. In Brown, this court noted:
“Several appellate court opinions have emphasized that the action for loss of consortium was a derivative one (Mitchell v. White Motor Co. (1974), 58 Ill. 2d 159, 162) and could be maintained only if the facts entitled the [injured] spouse to recovery (Plocar v. Dunkin’ Donuts of America (1981), 103 Ill. App. 3d 740, 748-49; Knox v. North American Car Corp. (1980), 80 Ill. App. 3d 683, 690, 693-94; Rollins v. General American Transportation Corp. (1964), 46 Ill. App. 2d 266, 275).” (Brown, 104 Ill. 2d at 38.)
In Plocar, Knox and Rollins, the deprived spouse was denied recovery for loss of consortium where the facts were such that the injured spouse was not permitted to proceed with a cause of action.
This court, in Brown, then went on to state:
“More recently, however, this court has spoken to the contrary in Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 208-09, holding that a deprived spouse could maintain a loss-of-consortium suit even though the [injured] spouse’s action was barred by the limitations statute. The clear implication of that holding is, of course, that the right of the deprived spouse to recover does not depend on whether the [injured] spouse’s cause of action is still viable.” Brown, 104 Ill. 2d at 38.
In Hammond, the injured spouse’s personal injury claim was barred by the two-year statute of limitations when the deprived spouse filed her loss-of-consortium claim. In allowing the loss-of-consortium claim, this court rejected the defendant’s argument that the loss-of-consortium claim was derivative of the injured spouse’s personal injury claim and should therefore be barred by the statute of limitations which served as a defense to the injured spouse’s cause of action. The holding in Hammond, then, was directly at odds with the pre-AZms concept that a loss-of-consortium claim was derivative of, and therefore subject to all defenses available against, the injured spouse’s cause of action.
In Page, this court held that an employer’s workers’ compensation lien would not attach to a settlement received by a deprived spouse for a loss-of-consortium claim. This court stated:
“[A]n action for loss of consortium is not a derivative claim brought by the spouse as the personal representative of the employee, but is an independent action to recover for injuries the spouse has suffered, such as loss of support and loss of society. (See Brown v. Metzger (1984), 104 Ill. 2d 30, 38; Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 208-09.)” Page, 119 Ill. 2d at 48.
The fact that a majority of other jurisdictions have chosen to impute the negligence of the injured spouse to the deprived spouse’s loss-of-consortium claim does not, in and of itself, prove the wisdom of that choice. Neither does it change the fact that, in Illinois, a loss-of-consortium claim is an “independent action to recover for injuries the spouse has suffered” (Page, 119 Ill. 2d at 48).
Jurisdictions which reduce a consortium award by the comparative negligence of the injured spouse characterize the consortium claim as derivative and subject to any defense which the defendant would be able to assert against the injured spouse. The rationale for this conclusion is that, because the consortium claim is derivative, a deprived spouse “can have no better standing in court than is vested in [the injured spouse].” Nelson v. Busby (App. 1969), 246 Ark. 247,_, 437 S.W.2d 799, 803.
Jurisdictions which do not reduce a consortium award by the comparative negligence of the injured spouse characterize the consortium claim as independent from, and not derivative of, the claim brought by the injured spouse. The jurisdictions so holding reach this conclusion by “examinpng] the nature of the claims, not the source of the injuries.” (Feltch v. General Rental Co. (1981), 383 Mass. 603,_, 421 N.E.2d 67, 71.) This is because “although [the deprived spouse’s] claim for loss of consortium [is] based on the same set of facts as the [injured spouse’s] action for personal injuries, each spouse ‘is enforcing an independent right.’ ” Feltch, 383 Mass, at_, 421 N.E.2d at 71, quoting Duffee v. Boston Elevated Ry. Co. (1906), 191 Mass. 563, 564, 77 N.E. 1036, 1037.
Our General Assembly has determined that “any damages allowed shall be diminished in the proportion to the amount of fault attributable to the plaintiff.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1116.) To reduce a consortium award by the degree of comparative negligence attributable to the injured spouse would be to impute the negligence of one party to another. “It is fundamental in the law of imputed negligence that to impute the negligence of one person to another, such persons must stand in a relation of privity and there is no such thing as imputable negligence except in those cases where such a privity as master and servant or principal and agent exists.” Palmer v. Miller (1942), 380 Ill. 256, 259-60.
I would hold that the comparative negligence of an injured spouse may not be imputed to a deprived spouse in a loss-of-consortium claim; therefore, a loss-of-consortium claim may not be reduced by the comparative negligence of the injured spouse.
I do not agree with the majority that its holding is “the natural extension of the earlier Illinois precedent for loss-of-consortium claims.” In my opinion, under Brown, Hammond and Page, a loss-of-consortium claim is a separate and independent cause of action which is personal to the deprived spouse and is not subject to the defenses available to the defendant against the injured spouse. I do not agree with the majority that treating a loss-of-consortium claim as derivative is the “simplest and most efficient way to reach a just result.” A plaintiff’s damages are to be “reduced by the percentage of fault attributable to [the plaintiff].” (Alvis, 85 Ill. 2d at 25; see Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1116.) In my opinion, it is not just to a deprived spouse, who is not at fault, to reduce a consortium award by the amount of fault attributable to any other person.
The majority identifies a conflict between the requirements of the Contribution Act that a settlement by a joint tortfeasor be made in good faith (Ill. Rev. Stat. 1987, ch. 70, par. 302(c)), and section 5(b) of the Workers’ Compensation Act. (“No *** settlement *** shall be valid without the written consent of both employer and employee or his personal representative, except in the case of the employers, such consent is not required where the employer has been fully indemnified or protected by Court order” (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(b)).) The majority resolves this conflict by concluding that “[i]t is of utmost importance that the trial court protect an employer’s lien.” The majority relies on Freer v. Hysan Corp. (1985), 108 Ill. 2d 421, in reaching this conclusion.
The majority either overlooks or ignores a simple but important distinction between Freer and the case at bar. In Freer, there was no action in contribution by the defendants against the employer. The only interest of the employer in Freer which was in need of protection by the court pursuant to section 5(b) was the employer’s workers’ compensation lien. Freer did not contemplate a situation where an employer was potentially subject to liability to a defendant in contribution. Freer contemplated a situation where the only protectable interest on the part of the employer was its workers’ compensation lien — there simply was no other interest to protect.
In determining whether to approve a settlement in a case where an employer has a workers’ compensation lien and where an action in contribution against the employer exists, the circuit court, in the exercise of its discretion, must consider whether the settlement is in good faith and whether the settlement serves to protect the employer pursuant to section 5(b). An order of the circuit court protecting the employer pursuant to section 5(b) in such a case is more than simply protecting the employer’s workers’ compensation lien. The potential liability on the part of an employer to a defendant in an action for contribution must also be considered. If it were otherwise, one interest of the employer, that of avoiding potential liability in contribution, would be sacrificed for another interest of the employer, that of recouping any benefits paid to the injured employee. In the instant case, the circuit court had to consider not only the interest of the Village in recouping its workers’ compensation lien, but also the interest of the Village in avoiding potential liability in the contribution action brought against the Village by defendants.
The majority can see no valid reason for Marilyn’s loss-of-consortium award to be more than three times the value of William’s injury claim and concludes that the settlements do “not appear to be in good faith. The value indicates that the settlements may have been reached in a manner to avoid the Village’s lien.”
In my opinion, the circuit court correctly rejected the Village’s argument that William’s comparative negligence must be imputed to Marilyn’s loss-of-consortium award. The circuit court did not abuse its discretion when it accepted plaintiffs’ argument that the smaller amount of recovery to be received by William pursuant to the settlements was justified in part because, had the case gone to trial, William’s award could have been substantially reduced due to his comparative negligence.
The circuit court rejected the Village’s argument that the instant case was analogous to Dearing v. Perry (Ind. App. 1986), 499 N.E.2d 268, where the plaintiffs, an injured spouse and a deprived spouse, and a third-party defendant “negotiated [a] settlement behind [the employer’s workers’ compensation carrier’s] back” for the full amount of the third-party defendant’s insurance policy. (Dearing, 499 N.E.2d at 272.) In Dearing, the workers’ compensation carrier was unaware of negotiations between the plaintiffs and the third-party defendant and was first notified of the settlement when the settlement was paid into court. In the case at bar, the circuit court found Dearing distinguishable. According to the circuit court, the plaintiffs in Dearing “tried to pull a fast one.”
In the instant case, it is a matter of record that defendants had a contribution action against the Village and the Village had a fourth-party complaint against William. It was the Village’s position that William was responsible for his own injuries and if any judgment were entered against the Village in favor of defendants, the Village expected contribution from William.
The Village was given the opportunity to question Marilyn concerning the value of her loss-of-consortium claim. The Village, however, waived its right to examine Marilyn. The Village failed to present any evidence to challenge the settlements. No evidence was presented that Marilyn’s loss-of-consortium claim was not worth what was being proposed by defendants. No evidence was presented concerning the degree of William’s comparative negligence. No evidence was presented that the two settlements were being divided in a collusive manner so as to circumvent the Village’s lien. The circuit court specifically found that there was no collusion present in the instant case as compared with Dearing, and found the proposed settlements in good faith.
The circuit court considered the fact that, pursuant to the settlements, defendants would not pursue the contribution action against the Village. The Village has resolutely refused to acknowledge that the settlements protect it from potential liability to defendants in contribution. The circuit court, however, was not required to ignore that a significant interest of the Village would be protected by the settlements.
In determining whether a proposed settlement both is in good faith and serves to protect an employer, “the entire circumstances surrounding a settlement must be taken into account.” (Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 122.) Page requires that a loss-of-consortium award be “fair and reasonable in light of the total settlement.” (Page, 119 Ill. 2d at 50.) This determination must be made “by an independent, impartial trier of fact.” (Page, 119 Ill. 2d at 50.) In my opinion, the circuit court satisfied the requirements of Page.
In the instant case, the circuit court held a hearing in which arguments of counsel were heard and an opportunity to challenge the good-faith nature of the settlements was expressly waived by the Village. The circuit court did not “simply ratif[y] the allocation of the settlement[s].” Page, 119 Ill. 2d at 50.
The circuit court considered the totality of the circumstances, specifically found no collusion, and concluded the settlements to be in good faith. It was noted by the circuit court that, had William not brought suit against defendants, the Village would not have had the opportunity of recouping any of the benefits paid to William. Further, as a result of the settlements, the Village was protected against potential liability to defendants in contribution. The circuit court properly considered both the interest of the Village as lien holder and the interest of the Village as a third-party defendant in the contribution action. The circuit court properly allowed the Village an opportunity to present evidence to show that the settlements were not in good faith or to show that the Village was not being protected by the circuit court. Under these circumstances, I would hold that the circuit court did not abuse its discretion in approving the two settlements, and would therefore reverse the appellate court.