also dissenting:
I respectfully dissent from the majority opinion in this case for the simple reason that it usurps the legislative function of the General Assembly under the guise of judicial interpretation. That is to say, it takes a legislative pronouncement which is clear-cut, declares it to be ambiguous and then offers a judicial definition that is preferred by the court. I object to this methodology.
The dispute in this case is whether the spouse of an injured party may maintain a claim for loss of consortium under the Structural Work Act. (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.) Both the trial court and the appellate court looked at the claim, read the language of the Structural Work Act and decided that such a claim would not lie. (205 Ill. App. 3d 661.) The majority of this court believes otherwise.
My disagreement with the decision at hand has nothing to do with the policy question of whether the statute ought to afford the sought-after remedy. My disagreement centers on the sole point of whether the statute in fact affords that remedy. Clearly, it seems to me, the statute does not afford that remedy.
The statute in question provides relief for “the party injured.” (Ill. Rev. Stat. 1987, ch. 48, par. 69.) So far as I am concerned, the phrase “party injured” means just that. It means the party who was injured. It does not mean the spouse of the party or his mother, father, children, brothers, sisters, aunts, or uncles. Had the legislature wanted to include these additional categories of persons, or any of them, it could have done so by so stating. The discussion of the law in this situation was well covered by Presiding Justice Henry Lewis of the appellate court, who authored the majority opinion below which this court now reverses. I cannot improve on Justice Lewis’ marshalling of the applicable law and I will not attempt to do so. I invite anyone who wishes to pursue the matter further to read Justice Lewis’ opinion. 205 Ill. App. 3d 661.
Finally, I note that the majority, relying and expanding upon Pickett v. Yellow Cab Co. (1989), 182 Ill. App. 3d 62 (spouse of a deceased structural worker may recover damages for loss of consortium under the Structural Work Act), concludes that since a loss of consortium claim is permitted when a worker is killed, logic dictates that a loss of consortium claim should also be allowed when a worker suffers nonfatal injuries because of a defendant’s wilful violation of the Act. This argument ignores that when a standard of care is created by the legislature, the legislature is entitled to define the persons to be protected by the statute and can exclude others from that protection. Additionally, the majority in the present case, and the Pickett court, reach the erroneous determination that the Structural Work Act permits a loss of consortium claim for the spouse of a deceased worker. This court must assign statutory language its plain and ordinary meaning. Words cannot be read into a statute which are not within the plain intention of the legislature. (Williams v. Illinois State Scholarship Comm’n (1990), 139 Ill. 2d 24; Bovinette v. City of Mascoutah (1973), 55 Ill. 2d 129.) From the plain meaning of section 9 of the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 69) if the worker dies, a cause of action for a “like recovery of damages” accrues to the surviving spouse, lineal heirs, or other dependant. When this cause of action accrues to the spouse, her rights are the same, and no greater, than those of the decedent. In essence, the Structural Work Act contains a survival section which permits the spouse to litigate the deceased worker’s cause of action, and recover only what the decedent could have recovered if he had lived.
By interpreting the words in the Structural Work Act according to their plain and ordinary meaning, a loss of consortium claim is available to neither the spouse of a deceased worker, nor the spouse of a nonfatally injured worker.
Accordingly, I respectfully dissent from the decision of the court.