Was your spouse injured or killed due to someone else’s negligence or wrongdoing? As the surviving or non-injured spouse, you may be entitled to bring a claim for the loss of your spouse’s services that occurred as a result of the injury or death. This is known as a loss of consortium claim.
Loss of consortium claims are complex and only available in specific scenarios. These claims are usually “derivative claims” brought alongside a wrongful death claim or your spouse’s personal injury claim. The California personal injury lawyers at Berman & Riedel, LLP have extensive experience handling loss of consortium claims involving car accidents, nursing home neglect, and more.
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What Is Loss of Consortium?
What does loss of consortium mean in a legal claim? Loss of consortium is an antiquated legal term that refers to the loss of the benefits of a familial relationship including affection and sexual relations. How does California law define loss of consortium?
- Loss of companionship, comfort, care, protection, assistance, affection, moral support, and/or society, and/or
- Loss of sexual relations or the ability to have biological children.
Decades of case law has further refined this broad definition and what it may include.
The loss of marital consortium can be partial – it does not need to be “so extensive as to be considered complete.” It can include everything from the loss of your spouse’s physical help in maintaining the household and moral support to comfort, affection, and sexual relations.
You have the right to recover not only for the lack of consortium you have suffered already but also for anticipated future loss of consortium, love, and affection.
Importantly, loss of marital consortium refers to an inability to maintain a normal marital relationship. This extends beyond the loss of sexual relations, sexual pleasure, or ability to reproduce.
Who Can File a Loss of Consortium Claim?
Under California law, a husband or wife can recover for claims involving loss of consortium because of a spouse’s injury or death. Loss of consortium claims are a derivative claim to the direct injury in California and cannot stand on their own.
Only a spouse or registered domestic partner may bring a claim for loss of consortium. Non-married partners who live together are not eligible. California also does not allow loss of consortium for parents whose children have suffered serious injury or death unlike some states.
Loss of Consortium Examples & Types of Cases
You may have a California loss of consortium claim if your spouse suffered significant injury or death that harmed your marital relationship. A loss of consortium claim can be brought against the party responsible for your spouse’s injury or untimely death.
Consortium damages may be available in any type of injury case including:
- Wrongful death
- Nursing home neglect
- Traumatic brain injury
- Car accidents
- Truck accidents
- Motorcycle accidents
- Product liability
- Construction accidents
- Premises liability accidents
- Medical malpractice
Loss of consortium damages are usually not available in cases involving fairly minor injuries to a spouse. They are commonly available in catastrophic injury cases and wrongful death cases in which the victim is killed or left with disabilities that severely impair their ability to provide spousal consortium such as permanent paralysis.
Technically, a loss of consortium claim does not need to involve physical injuries. An injured spouse’s mental distress and the psychological effects of their accident may alone damage the marital relationship and prevent them from providing companionship, assisting with the maintenance of the home, or enjoying sexual relations. However, proving loss of consortium can be challenging in cases that do not involve serious physical injury.
Damages for Loss of Consortium
California Civil Code Section 1431.2 includes loss of society, consortium, and companionship as examples of non-monetary or non-economic damages.
It’s important to understand that a loss of consortium California claim can only provide for non-economic damages. Any financial losses, such as the wages the injured spouse would have earned, home health care, domestic services, and medical costs, cannot be included. Still, loss of consortium damages can provide compensation for the many emotional aspects of your spouse’s accident, including an inability to have intercourse and the loss of shared activities and hobbies.
The loss of consortium definition in California allows you to recover damages for the deprivation or loss of:
- Household services
- Care provided to children
- Emotional support and care
- Sexual relations
- Ability to have biological children
If your case goes before a jury, they will receive CACI Loss of Consortium instructions, CACI Instruction No. 3920. CACI stands for California Civil Instructions. These instructions inform jurors to “use your judgment to decide a reasonable amount based on the evidence and your common sense.” Jurors are also instructed to not include compensation for loss of financial support, personal services, loss of earnings, or the cost of domestic household services.
Loss of Consortium Settlement Amounts – How Much Is Loss of Consortium Worth?
Your loss of consortium claim value depends upon the personal nature of the relationship with the injured or deceased spouse. The court may consider many factors such as:
- Whether the marriage was stable and the general quality of the relationship
- The relationship’s history including separation, divorce filings, infidelity, or reports of domestic violence
- The level of companionship and care the uninjured spouse received
- The living arrangements
- The length of the relationship
- The victim’s current quality of life
- Activities in which the injured or deceased spouse can no longer participate
- Social life and activities enjoyed together before the injury
- Changes in the desire or ability to engage in sexual relations
- Plans regarding having children and the spouse’s ability to do so before their injury
- The life expectancy of both spouses
Keep in mind that loss of consortium damages are considered “non-economic” damages. These damages do not involve exact monetary loss, and they do not have an objective cash value. In a trial setting, an award for loss of consortium is usually left to the discretion of the judge or jury.
Because a loss of consortium claim does not involve financial losses and the value is highly subjective, there is no way to give an average settlement amount or jury award. However, damages for loss of consortium can range from less than $50,000 to more than $1 million. There is no standard to determine the damages you may recover except for statutory limitations. In a medical malpractice case, for example, there is a cap of $250,000 on non-economic damages.
The largest loss of consortium settlement amounts are generally for cases in which the spouse suffered permanent injury that completely changes the spousal relationship.
In 2016, for instance, a jury in Los Angeles awarded $4 million in loss of consortium damages to a spouse whose partner of 50 years suffered a life-changing injury. This award was higher than the damages awarded to the injured spouse for the primary injury. That same year, a California jury awarded $1 million in consortium damages after a spouse suffered a serious traumatic brain injury in a car accident.
Proving Loss of Consortium
In order to recover damages in a loss of consortium claim, the following elements must be established:
- You had a valid, legal marriage,
- Your spouse suffered injury for which the defendant is liable,
- You suffered loss of consortium, and
- Your loss of consortium was caused by your spouse’s injury.
There must be proof of damages. Because spousal consortium is subjective, proving your losses can be challenging. Maintaining a journal that details the struggles you face, new challenges in your marital relationship, and the specifics of what you can and cannot do with your spouse can be helpful. Your attorney may also turn to medical experts and specialists to provide expert testimony on the extent of your spouse’s injuries and abilities.
Loss of Consortium Deposition Questions – What to Expect
One of the greatest challenges in a loss of consortium claim is the invasive discovery process. Bringing a claim for loss of spousal consortium means you will be asked to provide private details about your relationship with your spouse. This can be an uncomfortable and embarrassing experience for some people, and the defense hopes that this embarrassment encourages you to drop your claim.
The questions you are asked can get personal, especially during a disposition. You may be asked questions regarding:
- How much time you spent with your spouse before the injury and afterward
- The types of activities you participated in together
- The frequency of intimate contact and sexual relations
- Details about your sexual relations with your spouse, including positions in which you can and cannot have intercourse and how your sex life has changed
- Whether you have participated in therapy or counseling for sexual dysfunction
- Any past or present infidelity
- Any hardships or challenges in your marriage, no matter how long ago they occurred
Your attorney will help you prepare for these questions and be by your side. As much as possible, your attorney will also attempt to protect your privacy and may object to certain questions, especially if questions appear unnecessary and seem designed to embarrass, humiliate, or bully you.
Schedule a Free Consultation to Discuss Your Loss of Consortium Claim
Has your relationship with your spouse been significantly impacted after an accident or injury your spouse suffered, or have you lost your spouse due to someone else’s negligence? The personal injury attorneys at Berman & Riedel, LLP have extensive experience at bringing successful loss of consortium claims against negligent nursing homes, motorists, and more.
While no amount of money can undo the pain and suffering you have endured alongside your spouse, a loss of consortium claim can help ease the financial burdens that are often felt by the uninjured or surviving spouse. Contact our law office today to schedule a free initial consultation to discuss your case and legal options.