The traumatic effects of a serious injury can ripple through an entire family. Loved ones not only may suffer tremendous grief but also might have to cope with a loss of care, affection, and moral support. These non-economic damages fall under the umbrella of “loss of consortium” (LoC).
Under certain circumstances, the spouse or registered domestic partner of an injured party can bring a loss of consortium claim against the party responsible for the injury. Read on to learn the answers to a few frequently asked questions about these claims:
What Does Loss of Consortium Encompass?
LoC encompasses the loss of comfort, assistance, care, love, companionship, society, affection, and enjoyment of sexual relations (or the ability to have children). Claimants in the state of California have the right to pursue damages for the loss of consortium they have already suffered as well as any loss of consortium they are reasonably certain to suffer in the future.
Such damages may be awarded even if the injured party is expected to die soon after trial. Damages for future LoC may be awarded in cases involving permanent disability.
When determining the value of lost consortium, juries are permitted to consider LoC resulting from the injured party’s reduced life expectancy; however, juries will also consider the life expectancy of the injured party if the injury had not happened. In other words, the pre-injury life expectancy of the injured party places an outer limit on the LoC damages award.
What Does Loss of Consortium NOT Include?
There are many costs—both economic and non-economic—that the spouse of a personal injury victim may incur. To prevent a double recovery of damages, juries in California are instructed not to include compensation for the following damages in their calculation of loss of consortium:
- Loss of financial support provided by the injured spouse;
- Personal services such as nursing that the plaintiff has provided to the injured spouse;
- The value of income the plaintiff has lost due to taking time off work to care for the injured spouse; and
- The value of domestic household services that would have been provided by the injured spouse.
Although the above losses cannot be included in loss of consortium, they may still be recoverable in the injured spouse’s personal injury claim. For example, the injured party can seek compensation for lost wages, necessary nursing services, and household services that his or her spouse has provided.
In the case Mealy v. B-Mobile, Inc. (2011), the Court of Appeals of California determined that partial loss, or diminution, of consortium is compensable, meaning that the loss need not be so extensive as to be considered complete to warrant a recovery.
How Do Juries Determine the Value of Loss of Consortium Damages?
There is no fixed standard for determining the value of LoC damages. Juries are tasked with using their judgment to decide a reasonable amount based on evidence and common sense. (CACI No. 3920) Because there is no fixed standard for quantifying LoC, the importance of enlisting the help of a skilled, well-credentialed personal injury attorney cannot be overstated if you intend to pursue such damages.
Damages in an LoC claim may be reduced if it is determined that the injured party’s negligence contributed to his or her injury.
What Elements Must Be Proven to Recover Loss of Consortium Damages?
The following elements must be proven to recover LoC damages:
- The plaintiff and the injured party had a valid and lawful marriage at the time of the injury (unless the injury was not discovered or discoverable until after the marriage);
- The plaintiff’s spouse suffered a tortious injury;
- The plaintiff suffered a loss of consortium; and
- The defendant’s act or omission was the proximate cause of the loss of consortium.
If it is determined that the injured party has no cause of action in tort, the spouse of that party will not be entitled to loss of consortium damages.
What Evidence Will I Need to Prove Loss of Consortium?
There are many kinds of evidence your attorney might use to prove that loss of consortium damages are warranted. Examples of such evidence include:
- Documentation of the marriage such as a marriage certificate;
- Documentation of the settlement or verdict awarded to the plaintiff’s spouse;
- Medical documentation to prove the types of injures suffered by the plaintiff’s spouse and the severity of such injuries; and
- Deposition from medical experts, caregivers, and family members of the plaintiff’s spouse to prove the severity of the injuries and how such injuries have resulted in the loss of consortium.
Who CANNOT Pursue Compensation for Loss of Consortium?
While there are many parties who might suffer as a result of an injury to a family member or a loved one, only the spouse or registered domestic partner may recover damages for loss of consortium. Such damages cannot be awarded to the injured party’s children, parents, or unmarried cohabitants.
What If the Injury Occurred Before the Marriage?
If the injury occurred and was discovered before the marriage, the spouse would not be entitled to loss of consortium damages; however, if the injury was neither discovered nor discoverable before the marriage, the spouse may have grounds for a loss of consortium claim since the cause of action would not have accrued until after marriage.
Discuss Your Case with a Long Beach Personal Injury Attorney
Your Injuries Are Personal to Me
Attorney Michael D. Waks understands how a sudden accident can cause tremendous grief not only for the victim but also for his or her loved ones. Michael has dedicated his career to pursuing the highest possible compensation for clients who have suffered as a result of other parties’ negligence or intentional wrongdoing.
Michael has an in-depth knowledge of the statutes and case law pertaining to loss of consortium, and he understands the most effective strategies to employ in the pursuit of such damages. During your free consultation, Michael can assess the facts of your case to determine if you may be entitled to LoC damages. He can also answer your questions and provide the advice you need to make informed decisions regarding your claim.
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