(concurring specially).
I concur specially in the result and in all of the majority opinion except Division II. With respect to the issue of spousal consortium discussed in Division II, I disagree with both the result and the rationale.
The instructions which the trial court gave to the jury applied the measure of recovery which we approved in Acuff v. Schmit, 248 Iowa 272, 274, 78 N.W.2d 480, 481-82 (1956) and have continued to follow since that time. Acuff approved the so-called “sentimental version” of consortium loss limiting recovery to the intangible benefits of company, cooperation, and affection in a marital relationship. It viewed the spousal consortium claim as arising under the common law, and our subsequent decisions in Fuller v. Buhrow, 292 N.W.2d 672, 675 (Iowa 1980) and Weitl v. Moes, 311 N.W.2d 259, 262 (Iowa 1981) continued to treat it as such and in no way intimated that the right of recovery of the deprived spouse was in any way related to or affected by the statutory recovery granted to the injured spouse by section 613.15. Since the decision in Acuff, there has been no serious suggestion in our cases that the measure of recovery approved therein should be reexamined. •
To the extent that appellants in the present case ask for such reexamination, I favor continuing to adhere to the measure of recovery established in Acuff for the reasons stated in that opinion. Moreover, if the measure of recovery by the deprived spouse is to be enlarged, I submit that this should be accomplished by relying on common-law principles rather than invoking a statute which by its express language is made inapplicable to claims of a deprived spouse or child.
The majority suggests that some nexus between the claim of the deprived spouse and section 613.15 has been supplied by our decision in Audubon-Exira Ready Mix, Inc. v. Illinois Central Gulf Railroad Co., 335 N.W.2d 148 (Iowa 1983). I disagree with that suggestion. The main thrust of our decision in Audubon-Exira was to offer a consistent definition of the term “ser*211vices” as used in Iowa Code section 613.15. The significant portion of that statute for purposes of our present discussion provides:
[I]n the case of both women and men, such person, or the appropriate administrator, may recover the value of services and support as spouse or parent, or both, as the case may be, in such sum as the jury deems proper; provided, however, recovery for these elements of damage may not be had by the spouse and children, as such, of any person who, or whose administrator, is entitled to recover same.
(emphasis added). Although our decision in Audubon-Exira involved application of this statute to a wrongful death claim, the implications of that opinion spill over into the area of personal injury claims. This is because the statute speaks to the matter of damages recoverable in situations involving both injury and death.
The recovery permitted under section 613.15 is the value of “services and support as spouse or parent,” rather than services and support 0/spouse or parent. The clear implication of this language is that the recovery for services “as a spouse” under section 613.15 belongs the injured party and not to the spouse. Any doubt as to whether that is the intent of the statute is removed by its final proviso that:
recovery for these elements of damage may not be had by the spouse and children, as such, of any person who, or whose administrator, is entitled to recover same.
Still further indication that the recovery for loss of services and support under section 613.15 belongs to the injured party is the fact that for a period of 11 years following the enactment of that statute in its present form, any recovery by a personal representative for loss of services and support was distributed as personal property of the estate. Because wrongful death actions in this state are posited on a statutory preservation of the decedent’s cause of action, see, e.g., Egan v. Naylor, 208 N.W.2d 915, 917 (Iowa 1973); Wendelin v. Russell, 259 Iowa 1152, 1156, 147 N.W.2d 188, 190 (1966), this would not have been possible if such claims did not belong to the injured party.
In 1976, the legislature amended Iowa Code section 633.336 so as to provide that the recovery under section 613.15 by the personal representative of a decedent for the value of services and support shall be set aside by the court for the benefit of the surviving spouse and children. 1976 Iowa Acts ch. 1227, § 4. I cannot agree that this amendment shifted the ultimate right of recovery under the statute from the injured party to the expectant recipients of the lost services and support. As we held in Wilson v. Iowa Power & Light Co., 280 N.W.2d 372, 374 (Iowa 1979), that amendment merely provides how the deceased person’s enlarged right of recovery under the survival statute (Iowa Code section 611.20) for those elements of damage shall be distributed by the personal representative in the event they are recovered by the decedent’s estate. In Wilson, we stated:
Nothing in the amendment purports to change section 611.20 which we have said gives a wrongful death action its surviv-orship character. The elements of recovery are the same as before the amend-ment_ All that is changed is the distribution of damages.... The manner in which damages are distributed does not change the derivative nature of the action.
As a result of this conclusion, we held in Wilson that the entire wrongful death claim of the personal representative under section 613.15, including that portion involving loss of services and support, is subject to the defense of contributory negligence on the part of the decedent.
In Fuller v. Buhrow, 292 N.W.2d at 675, we continued to adhere to the view that the right of the spouse of the injured party to bring that person’s own claim for loss of consortium exists outside of section 613.15, and, unlike the injured party’s recovery under the statute, is not subject to the defense of contributory negligence on the part of the injured party. We also reaf*212firmed in Fuller v. Buhrow that while the meaning of “services” of a child for which recovery is permitted under Iowa Rule of Civil Procedure 8 is derived from section 613.15, those “services” embraced in a spouse’s independent claim for loss of consortium are more limited and involve only intangibles. Id. at 675-76.
In Audubon-Exira, we approved recovery for the post-death loss of the intangible elements of spousal and parental consortium as an element of “services” under section 613.15. Nothing in our holding purports, however, to change the measure of recovery for loss of spousal consortium prior to the injured party’s death or to suggest that it depends on section 613.15.
In invoking section 613.15 to enlarge the right of recovery of the deprived spouse, the majority gratuitously nullifies the right of recovery by the injured spouse which that statute expressly grants. In addition, the majority gratuitously issues an advisory opinion on the scope of rule 8 of the Iowa Rules of Civil Procedure even though that rule „is in no way involved in the present case. Rather than developing new rules which affect the rights of persons who are not parties to this litigation and in which the present parties have no interest, I would decide this case solely on the spousal consortium claims involved in this litigation. I would treat them as common-law claims and adhere to the Acuff measure of recovery.
UHLENHOPP, P.J., and McGIVERIN and WOLLE, JJ., join this special concurrence.