Loss of consortium claims are treated as an afterthought by most personal injury lawyers. While they are legitimate claims, their value usually pales in comparison to the primary plaintiff’s claim (and often add no real value, for reasons I’ll discuss below). Unless your case involves an injury affecting sexual function, or has caused such a severe strain on your marriage that you have needed counseling, it is worth asking whether a loss of consortium claim is worth bringing at all. Most lawyers will automatically include a consortium claim unless instructed otherwise, so you should initiate a genuine discussion regarding the value of such a claim during your first meeting.
Loss of Consortium — What is It?
If you are married (or in a civil union) at the time of your accident, your spouse is entitled to be compensated for his or her loss of your comfort, companionship and services due to your injuries. Boyfriends and girlfriends cannot bring such a claim, no matter how long you’ve been together. Most people assume that loss of consortium claims are only about sex, but while disruption of your sex life is an element of these claims, it isn’t the only one. If the injured spouse is unable to perform his or her usual household duties (cooking, cleaning, yard work, child care, shopping) and now the other spouse must pick up the slack, the other spouse is entitled to compensation for the additional work. Also, if the injured spouse’s personality has been affected (depression, general unpleasantness, etc.) to the point that it has caused a strain on the marriage itself, the non-injured spouse is entitled to recover for the emotional distress occasioned by this.
Loss of consortium claims are derivative claims, meaning that they only exist as long as the primary injury claim from which they derive exists. If the primary injured party settles his or her claim, the loss of consortium claim goes away as well — so, don’t think you can be clever and settle the injured party’s claim and then hit up the insurer for the consortium claim.
Does a Loss of Consortium Claim Add Real Value to a Case?
Whether a loss of consortium claim adds real value to a case will depend on several factors. The first is obviously the value of the primary injury case. Typically, the more injured the primary party is, the more valuable the loss of consortium case will be, as a more serious injury is more likely to have a serious impact on a marriage.
The second factor is the state of the marriage prior to the accident. If your marriage was already in trouble, or if one spouse had a recent affair, your loss of consortium case will be worth a lot less than one brought by a couple previously living in marital bliss.
The third factor is how seriously your marriage was harmed by the accident. Injuries which cause sexual dysfunction will clearly increase the value of a consortium claim (assuming you didn’t previously have a sexless marriage). Seeking marital counseling will usually increase the consortium claim’s value as well, assuming you hadn’t prior to the accident. I am by no means suggesting that you engage in marriage counseling if you don’t need it. You may wind up opening a can of worms that would have remained closed without the counseling, creating a real problem where one didn’t exist — don’t risk the marriage just to increase the value of a consortium claim.
Regardless of the above factors, if you have a personal injury case which is likely to cause the tortfeasor’s insurer to tender its policy limits based solely on the primary plaintiff’s injuries, a loss of consortium claim probably won’t add any value. If the tortfeasor has split per person/per accident policy limits (as many automobile insurance policies will), the consortium claim will be capped under the same per person limit as the injured plaintiff’s claim, due to it being a derivative claim. So, unless the insurer commits bad faith, a consortium claim brought as part of an injury claim that is already worth “policy limits” doesn’t add any real value.
Even in cases involving more than adequate liability insurance coverage, it has been my experience that most consortium claims don’t add to the amount of settlement offers made by insurers. Rather, the insurer will offer the same amount it would have without a consortium claim, and make that the offer to settle both claims. So, for most cases that settle, the consortium claim just cannibalizes part of the primary claimant’s settlement, instead of adding value to it.
For cases which do not settle, and actually go to trial (a very rare thing these days), a consortium claim will add value. Because jurors assign damages to the injured party and the spouse separately, they avoid the risk of cannibalizing part of the primary plaintiff’s claim to pay the consortium plaintiff — both the primary plaintiff and the spouse get fully compensated. Of course, the amount awarded to the spouse will depend entirely on the evidence presented regarding how the primary plaintiff’s injuries have affected the marriage.
Loss of Consortium Claim Downsides
The primary downside of bringing a loss of consortium claim is that it opens up several areas of discovery to the defense lawyer which may prove embarrassing or painful to discuss. Both the injured plaintiff and the spouse can expect to be questioned thoroughly about their sex life, both before and after the accident. While most defense attorneys will handle these questions professionally, and only ask for as much information as needed to fairly evaluate the claim (which can still be pretty invasive, such as “how often you have intercourse per week”), some take a perverse pleasure from going into embarrassing details (such as positions and specific activities you no longer engage in). Most of these questions will be “fair game”, so don’t expect a judge to limit this type of inquiry.
If your marriage has overcome past difficulties, such as separation or infidelity, expect that to come up in your depositions. If you’ve had marriage counseling, expect the defense to ask for your therapist’s records (the same is true for post-accident counseling).
A lot of old wounds can be re-opened as part of the discovery process when you bring a consortium claim. I strongly suggest that you not try to hide past marital difficulties. If you do, and get caught, you’ll damaged your credibility — which will reduce the value not only of your spouse’s consortium claim, but your primary injury claim, as well.
Marital Conflicts Can Become Conflicts of Interest
Almost all loss of consortium claims are brought by the attorney who also represents the primary injured plaintiff. Both husband and wife are clients of this one lawyer. Normally, this is not a problem — but it can be.
The fact that a loss of consortium claim is being brought means that all is not well in the marriage. Obviously, the more martial problems the accident has caused, the more valuable the loss of consortium claim is — and the more likely there will be conflicts between the spouses with respect to the injury claim. If your lawyer represents both you and your spouse, he cannot advise either one of you regarding an action which may hurt the other. He cannot adjudicate differences between you as to how settlement money gets divided. To take one spouse’s side against the other would violate the lawyer’s ethical obligations regarding conflicts of interest between current clients.
Many insurers will try to settle an injury and associated consortium claim through one lump sum offer which doesn’t assign any specific sum to either spouse. Depending on your marital stability, this may not work for you. If you foresee any problems splitting up settlement money, it may be best to tell your lawyer to require the insurer to specify how much is being offered for each spouse’s claim. If your situation is particularly dire, it may be best to have the insurer write separate checks for each spouse’s settlement (of course, if you’re going to get divorced, this may not matter, as the money may get divided by the divorce court regardless of who received it).
In short, if your marriage is in rough shape, an ounce of prevention before the case settles could avoid a serious problem afterward. Your lawyer won’t be able to take sides or resolve disputes between you and your spouse if he represents both of you, but he can help settle the claims in a way that may avoid conflict entirely. Letting him know early in the process that a dispute between spouses may be on the horizon could help him settle the case in a way that avoids that dispute.
Loss of Consortium Claim — The Bottom Line
Now you may infer from all the negative information I’ve discussed that I think loss of consortium claims are more trouble than they’re worth. This really isn’t the case. The extra work in bringing such a claim for me, as a lawyer, is minimal in most cases, and consortium claims ultimately can add some extra value to the case. In more serious cases, they can add quite a bit of extra value to the case.
I point out the downsides of these claims because very few lawyers will do this (again, these claims are largely an afterthought), and because you, as a plaintiff (or spouse) need to make your own decision as to whether the extra work for you and possible embarrassment created by a consortium claim is outweighed by its value. If you’re willing to endure uncomfortable questions in order to ensure full compensation should your case go to trial, then you should bring a consortium claim. If you’d rather keep your private marital life private, even if you costs you some money, then you shouldn’t.
Before making your final decision, you should discuss this matter with your spouse and your lawyer. If you are receiving marriage counseling, you should also discuss this with your counselor — if your marriage may not survive an airing of its dirty laundry, this may be an easy decision.