When someone is injured in an accident, particularly one that causes catastrophic, life altering injuries, the injured victim often is not the only victim whose life is turned upside down as a result of the injuries. The victim often has family, who are left to deal with their loved one’s injuries.
As a family member of an injured person, you may have a separate, independent claim from your family member for your own damages, with what is known as a loss of consortium claim.
What is a Consortium Claim?
Consortium claims are independent actions brought by the spouses or close family members of an injured victim. The claims are independent, but are brought in the same lawsuit as that of the victim. Often, the victim and the family member are co-plaintiffs in the lawsuit.
A consortium claim provides a spouse the ability to recover for the ways that their relationship and lives with their injured spouse have changed as a result of the injury.
The law recognizes that when spouses can no longer enjoy walking in the park, going to a movie, or playing their favorite game together, that loss has a value. It recognizes that when a couple used to be happy, but now argues all the time as a result of the victim’s injuries, or when a couple used to be intimate but now are unable to be, those losses and changes in life have a value.
A spouse who may have had to put his or her work career on hold to care for the injured spouse, or who may have to undertake obligations for the family that once were performed by the injured spouse, also has a consortium claim.
Injuries can change victims, not just physically, but emotionally. Whether due to the injury directly, the newly limited lifestyle, or because of medications, injury victims often suffer from depression, feelings of hopelessness, and sadness. Those feelings can pervade a relationship, and the other spouse has a right to recover for those relationship changes.
To put it plainly, the law recognizes that you have a right to a happy and healthy marriage, and when that is interrupted, you have lost something compensable under the law, just as your injured spouse has.
Proving Consortium Causation and Damages
Aside from proving the actual damages sustained, a consortium plaintiff needs to demonstrate that the parties are legally married and were so at the time of the accident. A victim also must show causation—that is, that the accident caused the changes or problems in the relationships.
This can be a sensitive area. To try to prove that the accident did not cause the changes to the marriage, defendants will try to pry into the intimate details of people’s lives before the accident. The logic is that if a consortium plaintiff claims that an accident caused his or her marriage problems, the defendants are allowed to inquire whether those problems existed before the accident.
Defense attorneys will often try to highlight every single marital problem a couple had before the accident in order to show that the marital difficulties pre-existed the accident. Even records from marriage counselors or therapists could be subject to discovery by the defendants. Often, details of a couple’s intimate lives, before and after the accident, will be the subject of questioning by a defense attorney when a consortium claim is brought.
This is why a consortium claim is not something to be taken lightly, or by those who are unwilling to share details of their pre-accident marital lives. For those whose personal and family lives have been irreparably damaged, these disclosures are a small price to pay in return for compensation for a consortium claim.
Consortium Claims in Court
A consortium claim can be powerful before a jury. Often, juries do not see the affects that an injury has on a marriage. A husband or wife’s testimony of the lost happiness of their family life, or newfound hardship, can have a big impact on a jury.
Because there is no price tag or dollar figure on a loss of consortium, the way there would be on, for example, future medical care, or lost wages, a jury has wide latitude on how to value a consortium claim. However, where the family has incurred an expense—for example, if an in-home nanny is needed to take care of the children because the husband now has to take care of the injured wife—those incurred expenses will have a solid dollar figure.
A consortium claim is separate from the victim’s claim, so even if the victim settles, the consortium claim can survive. It also survives the death of the injured spouse.
Florida also has a separate statute which allows children to sue third parties for the loss of consortium of a parent—that is, when a parent is injured so severely, that the child is deprived of the care and attention of a parent. That statute does require a “permanent total disability” be proven, but catastrophic injury cases should meet that standard. Thus, parents who are significantly injured should consider whether their minor children may have their own consortium claims.
If you are injured, make sure that not just your injuries, but those that may be incurred by your family, are considered. Contact Brill & Rinaldi today about a free consultation to discuss your case.