Appeal from the Circuit Court of Cook County; the Hon. Edwin
M. Berman, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
In their interlocutory appeal from the trial court's order dismissing their amended complaint for damages, plaintiffs present the following issues: (1) whether section 5(a) of the Workers' Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a)), which operates to bar loss of consortium and society claims of a spouse or child arising from a work-related injury violates the due process and equal protection clauses of the constitution of the United States and State of Illinois and is therefore unconstitutional; and (2) whether a common law right of action for loss of society, training, guidance and companionship of a parent exists for a minor child against a third person who has negligently injured that parent.
The following facts are pertinent to the disposition of this appeal.
Plaintiff Melvin Block was injured on or about February 26, 1979, in the course of his employment as a truck driver with defendant Pielet Brothers Scrap and Metal, Inc. (Pielet). He and a co-worker were engaged in the removal of a load of junk cars when the cars tipped and fell upon him from a forklift truck being operated by the co-worker. Following the accident, plaintiff filed a claim for workers' compensation against Pielet.
Plaintiff instituted the instant action on May 27, 1980, against the John Doe Corporation, alleging that it was engaged in the business of manufacturing, assembling, distributing, selling and otherwise placing into the stream of commerce an unreasonably dangerous forklift truck which had proximately caused plaintiff's injuries. Later he amended his complaint adding the manufacturer and its related companies Caterpillar Tractor Company (Caterpillar), as additional defendants. Subsequently, by agreed order entered on February 13, 1981, Caterpillar continued as a defendant, while the other Caterpillar-related corporations were dismissed, without prejudice.
He filed a second amended complaint on February 23, 1981, naming Nagle-Hart, Inc. (Nagle-Hart), the distributor of the forklift truck as an additional defendant. Count III was added by plaintiff's spouse, Marsha, individually, and as mother and next friend of Diane, William, Ralph, Carol and Daniel Block (the children) and sought a cause of action for loss of consortium and for the loss of plaintiff's society on the children's behalf against defendants Caterpillar and Nagle-Hart. This count remained pending against the manufacturer (Caterpillar) and the distributor (Nagle-Hart). In count IV they sought the same relief against employer Pielet.
Pielet's motion to dismiss count IV of the second amended complaint on the grounds that (1) the loss of consortium claim of Marsha Block and the loss of society and companionship claim of the children against Pielet were barred by the exclusive remedy provision of section 5(a) of the Workers' Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a)) and (2) that a child's loss of parental society and companionship is not a recognized cause of action in Illinois was granted September 2, 1982.
Plaintiffs appeal from the entry of this order.
Section 5(a) of the Workers' Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a)) provides in pertinent part as follows:
"No common law or statutory right to recover damages from the employer * * * for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury." (Emphasis added.)
In the present case, plaintiffs contend that the provisions of section 5(a) are unconstitutional as they act to extinguish the common law and statutory rights of third parties who otherwise might be entitled to recover damages against an employer for an employee's injuries.
Conversely, Pielet contends that section 5(a) is a constitutional "exclusive remedy" of the Workers' Compensation Act, which acts to extinguish the common law and statutory rights of any person entitled to recover damages from an employer for injuries received by an employee in a work-related "accident."
Initially, we consider plaintiff's argument that section 5(a) is unconstitutional as applied to spouses and dependent children of an injured employee. In Bloemer v. Square D Co. (1972), 8 Ill. App.3d 371, 290 N.E.2d 699, a case similar to the present case, the wife of an injured employee brought an action for damages sustained by her for loss of consortium, allegedly caused by the defendant-employer's negligence. The ...