What is Loss of Consortium?
A personal injury can have a severely negative impact on more than the life of the injured party. Their loved ones also suffer. When those losses diminish the previous standards of a loving, stable relationship, California law refers to the situation with a specific legal term known as “loss of consortium.” Consortium refers to a spouse or partner (i.e. consort) and partnership between two people.
This guide addresses the main points of this important legal topic:
What Causes Loss of Consortium?
In these cases, a person experiences one or more severe injuries or lasting disabilities or death because of another person’s intentional or negligent action. The party that committed the action, the defendant, can include perpetrators of assault, battery, rape and medical negligence or malpractice. Events that cause harm can include automobile accidents, manufactured product defects, recalled foods and slip-and-fall accidents. When one of these events occur, the uninjured spouse or partner, the plaintiff, no longer experiences the same level of relations with the injured or deceased person they had prior to the accident. They can then file an injury or wrongful death lawsuit.
The most common forms of loss include:
– Companionship: In simple terms, a “loss of companionship” refers to a loss that occurs because the injured person is suddenly only available in a reduced capacity or not at all as a companion and friend to their partner. For example, they might be unable to sit for any length of time and talk to their loved one about their day. They might be unable to travel with them to family events or handle walks or hikes together or even an at-home or out-on-the-town date night.
– Services: After an injury or death, the non-injured partner loses what’s commonly referred to as a “loss of services.” Although people in relationships break up their responsibilities in a variety of ways, they usually each share some prearranged amount of their total chores and obligations. Typically, this loss means that the non-injured partner must suddenly handle most or all responsibilities on their own, such as cooking, cleaning, banking and bill payments, gardening, home repairs, vehicle maintenance tasks, managing children, taking care of pets and dealing with emergencies.
– Support: With personal injury claims, we often immediately associate a loss of income or financial support only with the suffering of the individual who lost their ability to work because of an injury. Yet, their partner must deal with the negative impact as well. A sudden loss of income often forces the non-injured partner into the role of not only primary caregiver but also breadwinner. In many cases, a couple rely on two incomes to survive. An injury or death also creates extra expensive medical and related bills. The “loss of support” can upend the couple’s lives.
– Reputation: While dealing with the care of an injured loved one or grief related to their death, the non-injured person might experience a “loss of reputation” because of events that take place related to their mental anguish or need for time off. For example, they might become so emotionally distressed that they act out in public in such a negative fashion that one or more emotional events completely destroys any fair opinion of them. Their business reputation might suffer. Their clients or boss might view them less favorably. They might even lose their job.
– Intimacy: Known as “loss of intimate relations,” this final form of loss is how the courts historically judged damages related to loss of consortium. Since emotional and non-sexual intimacy falls under “companionship,” this specific loss refers to intimate sexual contact. In many cases, an injured person is emotionally or physically unable to experience sexual functions or relate sexually to their partner. For example, they might no longer have one or more functioning intimate zones. They might experience so much pain from an injury that any physical touch increases that pain or makes them feel nauseated or sick. They might experience emotional distress because of disfigurement that makes it difficult for them to allow their partner to touch them.
In California, this type of situation can also include losses of affection, moral support, protection and society. For example, the injured person stops providing as much general affection or moral support to their non-injured partner. They might be unable to offer physical or financial protection. Their partner might become cut off from a social life because they’re a round-the-clock caregiver or overwhelmed with responsibilities. The state also recognizes that they might experience the loss of children if a couple who intended to have children can no longer move forward with that plan.
Who Can Make This Type of Claim?
Throughout this informational page, we’ve primarily used “partner,” “non-injured person” and similar words to describe a potential claimant for this type of loss with good reason:
Historically, states only permitted a spouse, one half of a legally married couple, to make a claim related to consortium loss. Yet, modern changes in the law have made it possible for others to make this type of claim in certain states, including a partner from an unmarried couple, parents of an injured natural or adopted child, and one or more natural or adopted children of an injured parent. The children don’t have to be the product of a married couple either. They can be “legitimate” or “illegitimate.” For children to become involved, most courts focus on wrongful death cases in which the child loses advice, comfort, guidance and training from the parent in addition to some of the standard consortium losses of companionship, services and support.
The above said, California law currently only recognizes a married spouse or registered domestic partner as having a legal right to demand damages from an individual, business, group or governmental defendant. They don’t allow parents or children to file a loss of consortium claim.
How Are Losses and Damages Calculated?
Most cases go before a jury or judge because the damages are considered “non-economic” and “compensatory.” The money compensates the victim, the spouse or partner of the injured party, for their losses. Whoever reviews the case must take into account a wide range of factors before they can make a determination. In California, the courts focus primarily on proof that an injury or death resulted from an intentional wrongful or negligent action, the couple had a valid marriage or domestic partnership, the non-injured partner has suffered and their loss directly resulted from the cause of injury or death.
They might also review in an injury case, for example, the amount of time the injured party needs to recover, if applicable. If the injured person experienced a permanent disability, then the jury or judge might consider the number of years that the person can expect to continue to live and the loss of income during those years. They might also look at the person’s pre-injury relationship to determine if it was stable and loving and the extent of their contributions in terms of shared obligations and financial support. They might even require that the injured person previously won a separate personal injury claim to prove that their spouse or partner have a valid consortium loss claim.
It’s important to keep in mind that insurance companies and states limit the amount that a jury or judge can award. Most states cap liability. The type of injury claim, the severity or extent of the injury, the impact on the injured party’s life and even the state of the economy are usually taken into account. For example, medical malpractice limits differ from vehicle accident and government limits. A jury or judge might decide that a loss of financial support is a greater loss the loss of intimacy or the inability to have children. A period of inflation that causes a higher cost of living at the time of a ruling might prompt a jury or judge to award higher damages than if the case had been brought before them in a previous year.
How to File Loss of Consortium
All states set a statute of limitations or a law that defines the amount of time a person has to file any type of specific claim. Depending on whether a spouse or registered domestic partner is filing a claim related to a personal injury or wrongful death, they have two years to file from when the accident took place. In the case of an injury, they can file a claim even if their loved one’s injury isn’t permanent as long as they’ve personally experienced significant loss. Since this type of claim can reveal private details about their marriage or relationship to the public, it’s important to entrust the filing to a lawyer experienced in this area of the law.
At JT Legal Group, our knowledgeable, experienced team of personal injury lawyers helps our Los Angeles and Greater California clients make informed legal decisions. We provide up-to-date advice and handle filing and other steps of the process in a timely fashion. We’re experienced in a wide range of areas, including car accidents, negligence, and wrongful death. Call a caring and compassionate member of our team today to discuss your case.