What Is Loss of Consortium?
Some motor vehicle accidents or personal injuries result in serious injuries, even death. As a result, an injured party’s spouse or family member may experience a loss of companionship, love, affection, sexual relations, parenting or comfort enjoyed before the at-fault party’s negligence. This is a loss of consortium, sometimes referred to as “loss of companionship” or “loss of affection”. Usually, this legal action remains a viable option only when the injured party either endures chronic, extreme or permanent injury or dies from the sustained injuries.
How Do You Calculate Loss of Consortium?
This personal injury harm falls under the damages category of non-economic/general. This means that money serves as an attempt to compensate parties for their mental and emotional distress and losses. Additional examples of general damages include:
- Loss of reputation
- Pain and suffering
- Mental anguish and shock
- Embarrassment and humiliation
Often, judges and juries decide how much to award parties for loss of consortium. Non-economic damages are often so burdensome to calculate. Because of this, those who experienced a loss should turn to a trustworthy and experienced attorney in their state to help them decide on a fair monetary value.
How Do You Prove a Loss of Consortium?
To stand a chance of receiving legal damages of any kind, parties must prove their loss to the court. For loss of companionship, the person must consider:
- Current living arrangements
- The affection in and stability of the marriage
- The degree of companionship and attentiveness the spouse enjoyed
- The spouse’s life expectancy
Painting a vivid picture of the marriage or parent-child relationship before the accident better demonstrates the degree of loss suffered because of the accident. Further, it helps judges and juries decide how much to award in damages.
Who Can Claim a Loss of Consortium?
Not just anyone can come forward to claim a loss of affection hoping to receive damages. In most cases, spouses and partners bring loss of consortium claims. Times have changed so that most states allow domestic partners to file a legal action. Anyone considered a domestic partner should consult with a lawyer to determine how their state handles such claims.
Depending on the state, parents and children may claim a loss of companionship. In this scenario, the parent or child could make an argument that the incident prevented the injured child or parent from maintaining the same affection, care and nurturing as before the personal injury. To better guarantee damages, the child or parent must demonstrate how the injury uprooted the child/parent relationship.
Are There Limits on Claims?
Individual state laws determine limits on loss of consortium claims, and the same is true of insurance coverage. For instance, a state may impose a $350,000 non-economic damage limit or three times the amount of economic damages. Or whichever amount is greater. Depending on the jurisdiction, the person who wants to bring a claim may first have to prove that she or he and the injured party have a legal marriage. That means that if the couple divorced before the motor vehicle accident or personal injury, the total damage amount would likely decrease.
For insurance coverage, a majority of plans have “single injury” limitations. Such limits cap how much an insurance provider pays out for each incident. That means an insurance company may view a loss of affection claim as a separate incident.
What Is the Discovery Process Like for Loss of Consortium Claims?
The defendant facing blame for the loss of consortium claim has the legal right to secure legal representation. That advocate could make every effort to rip to shreds the plaintiff’s claim through any means necessary. It is not uncommon for a defense attorney to work with a private investigator to scrutinize every aspect of the plaintiff’s relationship with her or his spouse. The goal is to find the smallest knot of tension in the relationship in hopes of bringing the claim tumbling down. Examples of this include uncovering criminal activity, infidelity, separation or physical or psychological abuse. Plaintiffs must know that anything brought up in front of a judge or jury becomes part of the public record.
The defense’s legal representation may resort to humiliating tactics, such as asking about the couple’s sexual history. Questions regarding whether the couple ever received therapy sessions or counseling together or separately are also common. They may also ask whether the couple sought a mental health or health care professional’s help for sexual complications.
All questions asked of the plaintiff do not have to bear relevance. That is because sometimes the aim is to uncover admissible evidence to the court. If the defense lawyer successfully sways the jury with uncovered evidence, the jury members’ unforgiving or critical nature may make them likely to dismiss or reduce the claim.
Because of the brutal nature of the discovery phase for loss of consortium claims, plaintiffs must prepare themselves for anything that the defendant’s legal representation may throw at them. Additionally, combing through their relationship with the injured spouse can help parties prepare for discovery questions and tactics. Throughout the entire discovery process, the plaintiff’s attorney can help decide which questions are fair and which cross the line, offering advice accordingly.
For children who claim a loss of consortium, they should prepare for questions regarding the frequency and degree of care the injured parent provided before the injury and the frequency and degree of care the parent provides post-injury. The defense attorney may also ask for details regarding how the injuries and their impact prevent the continued evolution of a loving, nourishing parent-child relationship.
Work With an Experienced Local Lawyer
While loss of consortium claim damages can never take the place of a loved one or a loved one’s affection, they can deliver a measure of comfort and peace of mind. Those who want to raise a claim should do so with a personal injury attorney’s experience and insight. Submit a request online or call us today at (866) 345-6784 to get in touch with an experienced lawyer in your area!