The opinion
JUSTICE SLATER, concurring in part and dissenting in part:
I am in complete agreement with the majority’s decision that both Quantum and Kelly are entitled to the Kotecki liability limitation. I disagree with my colleagues only on the issue of the actual amount of contribution which may be sought from each employer in this case. I believe that the joint and several nature of the employers’ workers’ compensation liability under the Act should not carry over to the contribution action so as to further restrain the third-party plaintiffs’ right to have liability apportioned based upon relative fault. The fact that the employers were jointly and severally liable for the payment of benefits should not entitle them to a joint limit on liability in a completely separate contribution action.
While I agree that Kelly and Quantum could not both be required to pay $35,692.23 in workers’ compensation benefits, that is nevertheless the amount of each employer’s independent compensation liability. If the contribution action was brought against Quantum only, its potential liability would be $35,693.23. I see no reason why Quantum’s potential liability for contribution should change simply because Kelly is also sued for contribution. To hold otherwise means that a borrowing employer’s contribution liability depends not only upon its degree of fault and its workers’ compensation liability, but also upon whether the lending employer is found negligent and to what degree.
I would therefore hold that the third-party plaintiffs should be entitled to seek contribution in the amount of $35,693.23 from each employer. This interpretation would not lead to a double recovery for either the third-party plaintiffs or the employee. Nor would it result in either employer facing double liability. Rather, it would further the equitable policy of allocating liability based upon relative fault.