A loss of consortium claim is often a standalone claim brought by the spouse of an individual who has been injured or killed as the result of a defendant’s negligence. Specifically, loss of consortium refers to a plaintiff’s loss of benefits—including but not limited to affection and sexual relations—due to the significant injury or death of their loved one.
The word “consortium” refers to the conjugal relationship between a husband and wife.
A marriage includes the right to your spouse’s company, affection, and support in every activity relating to the relationship. A spouse can bring a claim against the party found liable for the injury of his or her spouse if it caused harm to the marriage.
In California, loss of consortium is a form of noneconomic damage. Unlike compensation for hospital bills or personal expenses incurred, noneconomic damages are more abstract, and usually account for someone’s pain and suffering. The law in California states that a plaintiff can be reasonably compensated for noneconomic damages that include:
- The loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support
- The loss of the enjoyment of sexual relations or the ability to have children
However, the law is clear in that individuals who file a loss consortium claim against the person negligent in causing an injury or death cannot receive compensation for economic damage. Note that a non-injured spouse can sometimes receive the damages through their spouse’s claim.
In general, loss of consortium cases are brought by an uninjured spouse. Some states do allow other partners—not just a spouse or registered domestic partner—to file a loss of consortium claim. Be sure to discuss your legal rights with an experienced personal injury attorney. attorney.
In a loss of consortium case in California, the defendant is only required to pay damages based on the principles of comparative negligence.
“Comparative negligence” is a legal term which describes the percentage of fault assigned to the defendant in a personal injury case.
A court or jury will allocate fault based upon the facts of the case. For example, they may find a defendant 70% at fault and a plaintiff 30% at fault. The defendant would then pay 70% of the plaintiff’s reasonable damages. The plaintiff’s negligence offsets a defendant’s liability.
One such case illustrates comparative negligence in the state of California. Li v. Yellow Cab Co. (1975) is a case in which the plaintiff sued the defendant for damages due to injuries that resulted from a car accident. The trial court found that, because the plaintiff was partially at fault for the accident, the plaintiff was barred from recovering damages. The case escalated to the California Supreme Court, where the lower court ruling was overturned. They found that the plaintiff could be assigned partial fault and still recover compensation, thereby establishing comparative negligence in California.
If you file a loss of consortium claim, in general, you’ll only be entitled compensation equal to the percentage of fault assigned to the defendant.
What should you expect when filing a loss of consortium claim?
If your personal injury lawyer is considering filing a loss of consortium claim on your behalf, it is important that both you and your spouse clearly understand the closeness of your relationship will be extensively investigated and even called into question.
If your marriage happened to suffer through any hardships, such as infidelity or separation, the circumstances surrounding those issues may be discussed in detail. This fact does not preclude you from filing a loss of consortium claim. However, you should discuss with your attorney what to expect when you do file a claim.
If you or your spouse are injured, the personal injuries lawyers at Penney & Associates are prepared to help you recover damages. We are familiar with loss of consortium claims, and will approach your case with tact and expertise.