Loss of Consortium Claim — Worth the Bother?

Loss of Consortium ClaimLoss 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.

Settlement tip

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.

Claimsguide Promo

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.

Settlement tip

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.

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11 Responses to Loss of Consortium Claim — Worth the Bother?

  1. Debra says:

    How do I find a reply to my question …

  2. Mike says:

    In the case with children can they claim loss of consortium if their relationship has changed and the family itself ended up splitting up. If you would please email me at (e-mail address removed by admin) with an answer I would greatly appreciate it.

    • fl_litig8r says:

      I don’t answer questions by e-mail, as posting questions and answers in the comments helps others who visit the site with similar questions. With respect to loss of parental consortium claims, this is an area of evolving law which varies significantly from state to state. Some states only allow loss of parental consortium in cases of the death of parent (with some limiting this to minor children). If a state does allow these types of damages to be recovered by children in cases involving only injury (as opposed to death), it may only apply to certain cases. For instance, Florida has a statute setting for these requirement, Fla.Stat. §768.0415, which reads:

      768.0415 Liability for injury to parent.—A person who, through negligence, causes significant permanent injury to the natural or adoptive parent of an unmarried dependent resulting in a permanent total disability shall be liable to the dependent for damages, including damages for permanent loss of services, comfort, companionship, and society. This section shall apply to acts of negligence occurring on or after October 1, 1988.

      So, in Florida, the damages are only recoverable if the child is an unmarried dependent, and only if the injury is significant and results in permanent total disability.

      Note that these damages stem from the damage to the parent-child relationship directly related to the injuries and how they impact the parent’s ability to care for the child. If you’re asking whether the kids can recover because the accident resulted in damage to the marriage which led to divorce (and that is how the children were harmed), I’d say that it is unlikely that any state would support such damages.

  3. Kate says:

    How are Loss of Consortium claims calculated?…do you just pull a number out of the air, or a percentage of Pain and Suffering? I’m looking into it because my husband has to do all housework/cooking/cleaning/grocery shopping/clothes washing, etc because I am unable to. We have a 41 year happy marriage and we used to share duties equally. (I refuse to discuss my sex life in a public forum).

    • fl_litig8r says:

      In reality, not a lot of thought goes into consortium claim values. Technically, you could try to argue that the value of the lost services would be the cost of hiring someone else to perform them, but when those duties are actually assumed by the spouse and not farmed out to hired help, don’t expect that argument to win the day. Claims in which someone is actually hired (like a lawn care or maid service) stand a better chance of being awarded that value, both in settlement and at trial, but of course not everyone can afford to do that.

      The sad truth is that unless there is some clearly quantifiable amount of damages you can present, or a clear impact to a couple’s sex life which they are willing to share, consortium claims typically aren’t worth very much — in fact, as I discuss in this article, more often the insurer will just apportion some amount that it would have awarded to the primary injured party to settle the consortium claim, making the consortium claim almost valueless (or even a negative, as it takes money from the primary plaintiff to give to the spouse).

      In theory, this shouldn’t happen. The reality is that it does.

  4. Lucy says:

    I really could not find the proper category for my question, so forgive me for placing it here.
    I am a pro se litigant and can not find how to remove a claim of emotional distress from my complaint.
    Any tips on where to find the information or the name of the doc I need to file?

    Thanks in advance.

    • fl_litig8r says:

      Well, the official way to do this would be to file a motion to amend your complaint, with the attached proposed amended complaint not having the claim for emotional distress damages. This is kind of a pain in the ass, so I would first try the informal route of filing something short entitled “Notice of Plaintiff’s Withdrawal of Claim for Emotional Distress Damages”, which just says that the Plaintiff hereby gives notice that she withdraws her claim for emotional distress damages (no need for anything fancy or detailed). If the defendant doesn’t object, consider it done. If he does, then you’ll have to go the formal route of moving to amend the complaint.

  5. Lucy says:

    Thanks for the great advice. You’re the best.

  6. Christa [last name removed by admin] says:

    I was injured in a work place injury. The boss dropped a 200lb unit on my arm. My husband has suffered along with me as I have had to have 2 surgeries on my arm within the last year our sex life has suffered because I can’t lay certain ways and I still can’t put any weight on my arm. Its hard to cook and I can’t do most cleaning. I now also suffer from PSTD and have major depression that I have to be treated for and the meds further decrease my sex life which is almost non existent. Not only that I barley make any money now that I only work 25 hours a week due to DR. orders. We also have two kids together and he has to do most things for them too. We have been married for a little over 10 years but have been together 16. Does he have a claim for loss from my company that allowed my boss to break procedure and get me hurt?

    • fl_litig8r says:

      No. His claim would be barred by worker’s compensation laws, the same way your own claim for pain and suffering and emotional distress was barred. If this had been a non-comp injury, or a work-related injury where you could also sue some third party (like a maker of faulty equipment you used at work), he would have had a potential claim. Sorry.

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