In certain kinds of personal injury cases, most states permit spouses or family members of the injured person to recover "loss of consortium" damages against the defendant. Let's discuss what this means, how these claims work in practice, and more.
As part of a personal injury lawsuit, a loss of consortium action is usually a standalone claim brought by the spouse or family member of a person who has been injured or killed as a result of the defendant’s negligent or intentional action.
The idea is that, as a result of the defendant's conduct, the person who was injured or killed cannot provide his or her spouse or family member with the same love, affection, companionship, comfort, society, or sexual relations that were provided before the accident. So, the spouse or family member of the injured person has a claim for those losses.
Typically, claims for loss of consortium are not awarded unless the injured person dies or suffers a severe, longlasting, or permanent injury.
Loss of consortium is a type of harm that usually falls under the category of "general" or non-economic damages, meaning they are losses for which money is only a rough substitute. Other examples of general damages include:
Typically, these kinds of losses (and their monetary value) are left to the discretion of the judge or jury. However, since these kinds of damages are also difficult to quantify, you may need to retain an expert to provide a more precise monetary value for a loss of consortium claim.
Spouses and Partners. Historically, only spouses could bring a claim for loss of consortium. Many states, however, have relaxed this requirement to permit domestic partners to file a loss of consortium claim. The rules are different in each state.
Children and Parents. Some states also permit a child or parent to file a loss of consortium claim. In such a circumstance, the child or parent would argue that his or her injured parent or child is no longer able to provide the same level of care, nurturing, and affection as he or she provided prior to the injury. In this situation, the child or parent would have to show that the parent/child relationship was irrevocably altered by the physical injury.
Your loss of consortium claim may be limited by your state’s laws (or by an insurance policy). In some jurisdictions, for example, in order to bring a claim for loss of consortium, you will need to show that a valid marriage exists. So, if the couple divorced prior to the trial, the amount of damages awarded will be negatively affected. Other states may allow same-sex couples to bring loss of consortium claims, even in states where same-sex marriage is prohibited.
On the insurance side, most liability policies include "single injury" limitations. This means there is a cap on the amount covered by the insurance company per incident, and a loss of consortium claim might be treated as a separate incident for purposes of the policy.
By bringing a loss of consortium claim, the private and intimate aspects of your marriage or relationship will be put in the spotlight. So, you should consider whether you are willing to withstand the rigorous sort of questioning—during deposition and trial—that the defense attorney will likely engage in.
For example, if your marriage suffered through any hardships or tribulations prior to the injury—such as infidelity, separation, criminal charges, or abuse—the circumstances surrounding those problems will likely be discussed ad nauseum in front of the judge and jury, and will be a part of the public record. Talk to an experienced personal injury attorney for details on what to expect if you decide to make a loss of consortium claim.