Loss of consortium refers to what a husband or wife loses when their legal spouse is seriously injured in a personal injury case. This is compensable because the injured spouse is unable to function in the same spousal capacity as before the accident. You can bring this claim for loss of consortium against the 3d party to compensate for several things, including; loss of employment outside the home (when you have to quit your job or take time off to take care of your injured spouse), services in the home (when you have to do things your spouse used to do), loss of comfort (your spouse is not emotionally available to you like he or she used to be), and loss of consortium (you and your spouse are unable to engage in sexual relations and other physical contact).
Important things to know before you consider bringing a loss of consortium claim are: (1) A loss of consortium claim cannot be brought on its own, because it is “derivative.” This means that it must sit upon another cause of action, typically brought by your spouse for personal injuries or by your spouse’s estate for wrongful death; (2) You and your spouse must be legally married at the time of the bicycle, motorcycle, pedestrian or auto accident that caused the injuries. Fortunately, because this is based upon State law, same-sex marriage will count if your state has marriage equality (California finally does!) Also note that marriage AFTER the accident (even if it was the day after) will not qualify you for a loss of consortium claim; (3) A tort or tort-like act was committed by the defendant causing the plaintiff’s injuries; and (4) There has been a loss of benefit in the spousal relationship as a result of the injury.
Who should make a claim for Loss of Consortium?
You should make a claim for loss of consortium if your life has been drastically altered due to your spouse’s accident and injuries. If your situation falls within the parameters of 1-4 above, then you should talk to your spouse’s personal injury attorney about filing a Loss of Consortium claim. Note that because the loss of consortium claim is part of the personal injury or wrongful death claim and is not a separate claim, both claims must be paid from the same insurance policy. If the personal injury claim alone exceeds the value of the insurance coverage available in the case, then no loss of consortium claim should be brought. A loss of consortium claim cannot be brought to “trigger” opening up more insurance coverage in the case. Ask a qualified personal injury lawyer about this if you think your case may have a policy limits issue.
What you will need to prove your Loss of Consortium claim…
If you are serious about bringing a loss of consortium claim, you should gather evidence to document your difficulty with the relationship changes brought on by your spouse’s serious personal injuries. Economic loss is the easiest to prove, because a monetary figure can be assigned to it. In order to calculate “loss of services” damages, you may calculate how much it would cost to hire someone to come in and do the job (i.e. a housekeeper or chef) that your injured spouse could no longer do. The most difficult part of proving a loss of consortium claim is that you must prove the value of love, affection, comfort and society. These elements are similar to pain and suffering damages of the injured spouse and may be argued as such.
Be warned that the questioning in a loss of consortium claim can get very detailed and personal (for example “How often do you and your spouse have sexual relations?”), so you want to be sure you are ready to discuss this information openly at your deposition and in court before you bring a loss of consortium claim. Speak with a qualified personal injury attorney before making this decision.