When you’re injured in an accident, the damage doesn’t affect just you. It impacts your whole family too. No one knows that better than your spouse.
In a single instant, an auto accident or personal injury can turn your whole world upside down. And since you share your world with your husband or wife, his or her world turns upside down too.
Shouldn’t your spouse also be able to claim compensation for your injury, then? After all, in a very real sense, they are victims of the accident too.
In California, the answer is yes — in some cases.
In today’s article, we’re going to look at a type of personal injury claim called loss of consortium. It’s available to the spouses of personal injury victims in California, but only in certain circumstances.
There’s a lot to know about loss of consortium claims in California, so let’s start with the basics.
What Is Loss of Consortium?
Loss of consortium is a very old legal term, rarely used outside of insurance offices, law firms, and courtrooms. So if you haven’t heard it before, you aren’t alone. But while the terminology might sound fancy, the concept is relatively simple.
As a legal term, “consortium” refers to a person’s interest in receiving love, affection, and support from his or her spouse.
Loss of consortium, therefore, is a claim that one spouse makes when the other spouse is no longer able to provide the same level of love, affection, support, companionship, moral guidance, or even intimacy (e.g. sexual relations) as a result of an injury caused by someone else’s negligence.
How Does Loss of Consortium Work in a Personal Injury Case?
Let’s consider an example. Suppose that William is injured an auto accident. His wife, Martha, is not injured. But William’s injuries are substantial, affecting him physically, mentally, and emotionally. Even his sex life has been complicated by the injuries.
William has a straightforward personal injury claim for his physical injuries, pain, suffering, emotional distress, time away from work, and other losses.
But Martha might also have a loss of consortium claim against the at-fault driver. Even though she wasn’t directly injured, she has still suffered a loss — her relationship to her husband has been changed. In other words, she has lost consortium.
This is only one example. Loss of consortium claims can arise in many different contexts. Suppose, for example, that both William and Martha had been physically injured in the accident. Even then, they might have a claim for loss of consortium (depending on the facts and circumstances of the case, of course).
The Most Common Examples of Loss of Consortium
As alluded to earlier, some of the most common examples of loss of consortium in a personal injury case in California include:
- Loss of employment, if one spouse has to quit their job (or scale back their hours) to provide support for the other
- Loss of home services, if one spouse must now perform the household duties the other spouse can no longer perform
- Loss of companionship or support, if one spouse is no longer able to provide the same level of emotional support to the other
- Loss of intimacy, if the spouses can no longer engage in sexual relations, or if they cannot engage in physical contact the way they used to
Certain other “lost or diminished benefits of marriage” might also qualify for a loss of consortium claim.
(Note: a court may recognize any of the above-listed losses as evidence of loss of consortium. But when it comes time for the court to determine how much money your claim is worth, the court will calculate your losses as “non-economic damages.” In other words, the court will attempt to figure out a dollar amount that represents the overall impact on your marriage rather than repaying specific economic losses, such as the non-injured spouse’s lost wages or household services. Learn more about non-economic damages in a CA personal injury case.)
If you have questions about whether an accident’s impact on your marriage qualifies as loss of consortium (or how a court might calculate damages in your case), we urge you to contact a Bakersfield personal injury attorney in our office as soon as possible.
An Important Rule: The Loss Must Be Caused by the Spouse’s Injury
An important part of the loss of consortium claim in California is that the alleged loss (e.g. loss of companionship, loss of intimacy, loss of employment, etc.) must be caused by the spouse’s injury.
For example, what if William and Martha’s marriage turned sour after the accident for unrelated reasons? That’s exactly what the insurance company is going to ask. So you’ll need to be able to connect the injury to the loss of consortium. An experienced Bakersfield personal injury lawyer can help you analyze your claim and determine how to make the case for compensation.
Loss of Consortium Can Be an Independent Claim in California
Loss of consortium is usually a “derivative claim,” meaning it typically isn’t brought on its own. Rather, it is usually brought alongside the injured spouse’s personal injury claim (or wrongful death claim, if the spouse has died). The two claims can generally be handled as part of the same legal action and/or insurance claims process (and would typically be paid by the same insurance policy responsible for covering William’s injuries).
But in some cases, an uninjured spouse may be able to bring an independent claim for loss of consortium, even if the injured spouse did not sue. (If the injured spouse did sue and lost, however, or if the injured spouse agreed that the third party was not liable, the uninjured spouse cannot then turn around and sue that same party for loss of consortium.)
Returning to our earlier example, let us suppose that William suffered severe injuries that have impacted his marriage to Martha, but for personal reasons, William decided not to bring a personal injury claim. Martha can still bring a claim for loss of consortium in California.
Marriage Is Required (And Yes, Same-Sex Marriage Qualifies in California)
In California, the only parties eligible to claim loss of consortium in a personal injury case are:
- Spouses (including same-sex spouses)
- Registered domestic partners
Unmarried couples living together cannot claim loss of consortium in California, nor can any other family members. (This is not true in all states.)
The parties must have been married at the time of the injury. An exception applies for couples who marry after the date of a negligent injury if the injury and the loss of consortium do not become apparent until after the date of the marriage (or the date of registration for a domestic partnership).
Mickey Fine Is an Experienced and Compassionate CA Personal Injury Lawyer
Loss of consortium claims can be complex, and they aren’t appropriate in every personal injury case. They can also involve sensitive discussions about the intimate relationship you share with your spouse.
For that reason, it is critical that you work with an experienced personal injury lawyer who is willing to fight for every penny you’re owed while also treating the matter with the sensitivity and discretion it deserves.
If you or your spouse has suffered a significant injury in California and your marriage has suffered as a result, you may have a substantial claim for compensation under California loss of consortium law.
Experience matters. Don’t count on the insurance company to tell you whether you’re entitled to loss of consortium compensation (or to value your damages fairly). You may be entitled to much more than you realize.
Contact The Law Offices of Mickey Fine for a free and confidential case review today.