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Loss of consortium is the emotional harm that is suffered by the family and loved ones of the victim of an accident. It may be called loss of companionship, lost moral support, or lost intimacy. Only a victim’s close relatives can claim loss of consortium. Their demand for compensation is joined to the victim’s personal injury lawsuit.
What does “loss of consortium” mean?
The legal definition of loss of consortium is the emotional distress or harm that is inflicted on the family members or loved ones of an accident victim. It is one of the types of legal damages that is recoverable in a personal injury claim.
Different jurisdictions use different names for this type of damage, like:
- loss of consortium,
- loss of companionship,
- lost moral support,
- loss of society,
- loss of services, or
- lost intimacy.
Regardless of the name, loss of consortium aims to compensate the victim’s loved ones for the emotional suffering that they were put through, due to the accident. This can take the form of:
- the mental anguish of seeing a loved one suffer,
- losing marital benefits, especially if it alters the couple’s sexual relationship,
- grief from providing care for the victim,
- providing household chores to care for the injured party,
- making lifestyle changes or changing living arrangements to accommodate the victim’s injuries, and
- being unable to ask the victim for advice or guidance.
Unlike medical bills, loss of consortium is difficult to state in a monetary value. This makes it a form of non-economic damage. However, just because it is suffered by a victim’s family member, rather than by the victim, and just because it is difficult to ascertain does not mean that the loss of consortium does not exist. Especially when the spouse’s injury was a serious injury that caused a substantial disability, like a traumatic brain injury, his or her family members can bear a lot of hardship. They deserve to be compensated for it.
These loss of consortium cases are often filed alongside the injured person’s lawsuit for physical injuries sustained from a:
They are also common in wrongful death claims.
Who can make a loss of consortium claim?
The victim’s loved ones make a loss of consortium claim. The claim is generally joined to the victim’s personal injury lawsuit in a derivative claim. If the victim’s lawsuit fails, the loved ones’ demand for loss of consortium damages will also fail.
The specific family relationship necessary to make a loss of companionship claim will depend on the state’s personal injury law. Generally, states limit compensation for loss of consortium to current spouses. Many states are quite strict about this limitation, mainly because they focus on the lost sexual relations. Unmarried cohabitants or even those engaged to be married are often barred from recovering compensation for their loss of consortium.1 In some states, though, spouses who are separated may bring a loss of consortium claim.2
Some states also allow the victim’s children to bring a loss of consortium claim.3
A few states let the victim’s parents recover loss of consortium damages, though this may only be allowed if the victim is a young child and he or she has suffered severe injuries.4
Nearly all states block the victim’s stepparents or siblings from recovering loss of consortium.5
Anyone eligible to make a loss of consortium claim should talk to a personal injury lawyer and get their legal advice on how to proceed.
Are loss of consortium damages affected by shared fault rules?
Some states will reduce the compensatory damages that the victim’s loved one receives based on the victim’s share of fault for the accident. Other states will not.
All states have shared fault rules for when the victim was partially to blame for the accident that hurt them. These shared fault rules fall into 2 basic categories:
Contributory negligence bars victims from recovering any compensation if they contributed to the accident, in any way. Comparative negligence reduces the victim’s award by their percentage of fault. Some states use a modified comparative negligence scheme that bars the victim from recovering anything if he or she was more than half at fault.
Because the victim’s loved ones file their loss of consortium claim along with the victim’s personal injury claim, this means that the victim’s share of fault for the accident could reduce his or her loved ones’ compensation for loss of companionship.
Some states hold to the idea that loss of consortium claims are derivative of the lawsuit. This means that the state’s shared fault rules will reduce the award that the victim’s loved ones receive.6 Other states, however, refuse to reduce the loss of consortium award because the victim was partially at fault.7
Avoiding a reduction for shared fault is essential. Establishing an attorney-client relationship with an experienced personal injury attorney from a reputable law firm can help both the victim and his or her spouse or family member.
What is the law in California?
Under California state law, only spouses and domestic partners can recover compensation for loss of consortium.8 Children cannot recover compensation for loss of parental consortium.9 Neither can parents of hurt children.10
To recover compensation, the non-injured spouse has to show:
- there was a lawful and valid marriage in place between the uninjured spouse and the accident victim at the time of the injury,
- the victim suffered an injury in tort,
- the extent of the uninjured spouse’s loss of consortium, and
- the loss of consortium was proximately caused by the defendant’s act.11
Importantly, the couple had to be married at the time of the injury, not necessarily at the time of the accident. If the victim is hurt before the marriage, but the injury was not found or discoverable until after the marriage, the spouse can recover loss of consortium if the cause of action accrued during the marriage.12
That compensation is not limited to what the spouse has suffered, already. Prospective damages can be awarded if the spouse’s loss of consortium is sufficiently certain to occur.13 However, those prospective damages are limited to the victim and spouse’s life expectancy, whichever is shorter.14
California ties the loss of consortium claim to the victim’s personal injury claim. If the personal injury case is dismissed or fails to recover anything, then the loss of consortium claim also fails.15
California’s shared fault rules will also reduce the compensation received by the victim’s spouse in loss of consortium. If the victim was partially to blame for his or her injuries, that percentage of fault will reduce the spouse’s loss of consortium award.16
Legal References:
- See Hastie v. Rodriguez, 716 S.W.2d 675 (Tex. App. 1986) (cohabitants) and Sawyer v. Bailey, 413 A.2d 165 (Me. 1980) (fiancés).
- See Planned Parenthood, Inc. v. Vines, 543 N.E.2d 654 (Ind. Ct. App. 1989).
- See, for example, Giuliani v. Guiler, 951 S.W.2d 318 (Ky. 1997).
- See Reben v. Ely, 146 Ariz. 309 (1985) (10-year-old suffered severe and permanent brain damage).
- See, for example, Ford Motor Co. v. Miles, 967 S.W.2d 377 (Tex. 1998).
- See, for example, White v. Lunder, 66 Wis.2d 563 (1975).
- See, for example, Feltch v. General Rental Co., 383 Mass. 603 (1981).
- Elden v. Sheldon, 46 Cal.3d 267 (1988).
- Borer v. American Airlines, Inc., 19 Cal.3d 441 (1977).
- Baxter v. Superior Court, 19 Cal.3d 461 (1977).
- Vanhooser v. Superior Court, 206 Cal.App.4th 921 (2012).
- Leonard v. John Crane, Inc., 206 Cal.App.4th 1274 (2012).
- Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382 (1974).
- Boeken v. Philip Morris USA, Inc., 48 Cal.4th 788 (2010).
- Blain v. Doctor’s Co., 222 Cal.App.3d 1048 (1990).
- Craddock v. Kmart Corp., 89 Cal.App.4th 1300 (2001).
About the Author
Neil Shouse
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
