dissenting:
The majority is correct in holding that Bass and Schrock, Inc., the employer, is not entitled to impress a workers’ compensation lien on any judgment or settlement plaintiff might receive on the claim she brought for loss of consortium under section 9 of the Structural Work Act (740 ILCS 150/9 (West 1992)). The majority is also correct that Shoemaker and Goldfarb, owners of the construction site, are entitled to seek contribution from Bash and Schrock. I dissent today only because I disagree with the majority’s conclusion that plaintiff should be required to initiate a claim under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1992)) for her deceased husband’s injuries as a precondition of being allowed to proceed with her loss-of-consortium claim under the Structural Work Act.
Although the majority’s approach may have some practical appeal, it has no support in the law. Brown v. Metzger (1984), 104 Ill. 2d 30, 35, upon which the majority relies, holds only that where an injured party has already brought an action for personal injury, his spouse cannot pursue a loss-of-consortium claim independently. Rather, the loss-of-consortium claim must be joined with the injured spouse’s action "unless the deprived spouse can prove facts demonstrating why joinder with the impaired spouse was not possible.” Brown, 104 Ill. 2d at 35.
While this court may have the power to require joinder of cases which have already been filed, it has no authority to require a party to initiate a lawsuit in the first instance. This is especially true where, as here, the litigation is governed by statute.
Section 9 of the Structural Work Act expressly authorizes surviving spouses such as plaintiff to recover "direct damages,” which include damages for loss of consortium. (Harvel v. City of Johnston City (1992), 146 Ill. 2d 277, 293.) Nothing in the language of the Act purports to condition the recovery of such damages on the filing of a wrongful death action by the surviving spouse. To follow the majority’s approach would therefore require us to rewrite the legislative scheme formulated by the General Assembly. This we may not do, for
"[t]he only legitimate function of the courts is to declare and enforce the law as enacted by the legislature, to interpret the language used by the legislature where it requires interpretation, and not to annex new provisions or substitute different ones, or read into a statute exceptions, limitations, or conditions which depart from its plain meaning.” Belfield v. Coop (1956), 8 Ill. 2d 293, 307.
The majority is properly concerned with the need to protect the employer against the possibility of having to pay sums in excess of its liability under the Workers’ Compensation Act. (See Kotecki v. Cyclops Welding Corp. (1991), 146 Ill. 2d 155.) As the appellate court showed, however, that concern can be satisfied without having to engraft new restrictions on the Structural Work Act. All that need be done is to grant the employer a credit on its contribution liability for the payments it has made under the Workers’ Compensation Act.
Accordingly, I would affirm the judgment of the appellate court.