Compensating The Spouse and Family of The Injured: Loss of Consortium Claims

In a personal injury or wrongful death case, the family members of the injured person -- spouse/partner, children and parents -- can file a lawsuit for their own loss.

Most states permit spouses or family members of the injured person to recover damages for loss of consortium against the defendant in a  personal injury case. Loss of consortium is meant to compensate the spouse or family member of a person who has been injured or killed because of the negligence or otherwise wrongful act of the defendant. This article will explain the legal elements of a loss of consortium claim.

What is Loss of Consortium?

Loss of consortium is a claim for  damages  suffered 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, or otherwise wrongful acts.

But what are those damages exactly? The concept is that, as a result of the defendant's actions, 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 person injured has a claim against the third party for those losses.

Typically, claims for loss of consortium are not awarded unless the person injured dies or suffers a severe and enduring injury -- such as paralysis, amputation, or incontinence.

How is the Loss Calculated?

Loss of consortium is a type of harm that falls under the category of general damages. General damages are non-economic damages, meaning they are losses for which money is only a rough substitute. Other examples of general damages include:

Typically, this type of an award is left to the discretion of the judge or jury. However, since this type of damage is difficult to quantify, you will likely have to retain an expert to provide a more precise monetary value for a loss of consortium claim.

Who Can Bring a Loss of Consortium Claim?

Spouses and Partners

Historically, only spouses could bring a claim for loss of consortium. Many states, however, have recently relaxed this requirement and permit committed partners or same-sex couples to file a lawsuit alleging loss of consortium. 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.

Limitations on Loss of Consortium

Your loss of consortium claim may be limited by your state’s laws (or by an insurance policy if you're making a claim).

Legal Limitations

Each state has its own limitations on the availability of loss of consortium claims. In most 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, as discussed above, may allow same-sex couples to bring loss of consortium claims, even in states where same-sex marriage is prohibited.

Insurance Policy Limitations

Most liability policies include "single injury" limitations. This means that there is a cap on the amount covered by the insurance company per accident. In order to determine whether or not there is a policy limit, you will need to read the insurance policy. Unless the defendant is wealthy or has some significant assets, it's usually not possible to collect more compensation than the insurance policy allows.

What to Consider Before Making a Loss of Consortium Claim

By bringing a loss of consortium claim, the private and intimate aspects of your marriage will be put at issue. So, you should consider whether you are willing to withstand the rigorous questioning -- during deposition and trial -- that the defense attorney will likely bring.

If the 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.

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