Loss of Consortium
When someone maims or kills your loved one in an accident, the last thing you are thinking of is the derivative parts of a lawsuit that can only be brought if the main claim is won. Because of this (and other reasons), it is good to get a local lawyer involved as soon as possible in your personal injury or wrongful death case. You need someone who can think about claims like loss of consortium while you can focus on your loved one and getting yourself and your family through this difficult time.
Loss of consortium personal injury is a claim made by your spouse, parents, or children to compensate them for the loss of things they normally did with you, including general love and affection. Here, we will talk about the loss of consortium law in general, and then cover how it works specifically in Texas and Louisiana.
What Is a Loss of Consortium Personal Injury Claim?
Loss of consortium is a claim that the close family of an injured person can make. They can sue for the losses of companionship, love, and caring that have happened because of the injury or death.
Loss of consortium is one personal injury claim your family can make about your injury. It means you can no longer have the same family relationships and affection (including sexual affection) because of the injuries of someone very close to you. It is a claim that only immediate close family members can make. You may make a loss of consortium personal injury claim or in a wrongful death suit.
Loss of consortium is a claim for non-economic damages. It includes pain and suffering only. You should bring monetary losses as part of the main lawsuit, although some states include loss of support if a breadwinner is injured.
In many places, you can only make a loss of consortium claim if the injured person wins their underlying case. In other places, the plaintiff includes these claims for other people from the beginning of the case onward.
What Losses Count as Loss of Consortium?
A married partner can sue for harm caused by the accident to their relationship with the injured person. These claims may include:
- Strains on the marriage
- Loss of companionship
- Loss of affection
- Unable to do activities together
- Loss of financial support
- Loss of aid and assistance
- Sexual constraints
- Inability to bear children.
These amount to the weakening of family ties and losing family benefits once provided by the injured family member. We can make similar claims about other lost relationships. You cannot use some of these harms as the basis for a suit in every state. Check your state’s law to be certain.
Who Can Bring a Loss of Consortium Claim
Loss of consortium only comes up in cases of very close familial ties with a child, spouse, or parent. In some cases, a custodial grandparent may have a claim as well. Some examples of people making claims include:
- If a child has a severe birth injury and brain damage because of medical negligence, the parents can sue for loss of consortium.
- If someone injures a husband badly in a car accident, and he can no longer have sex, his wife can sue for loss of consortium.
- If a parent gets a traumatic brain injury from a truck crash, their child can sue for loss of consortium.
In short, anyone who loses a normal relationship with a close family member may be able to sue. This loss can come from a wide array of causes. In some states, domestic partners can make a claim, but in others they must prove they are married.
Elements of a Loss of Consortium Claim
To prove loss of consortium, you need to prove all three elements of the claim:
- The defendant harmed the plaintiff through negligence or on purpose.
- The plaintiff has an intimate, close relationship with the person injured.
- Because of the injury or death, the plaintiff has lost that close relationship with the injured person.
These three elements are common in most states, but some states add a fourth element or configure the three differently. Always check the particular law in your state.
While most cases result from negligence or intentional offenses, not all are. Other charges can bring about a loss of consortium claim. Other types of cases that may be the basis for a loss of consortium claim include:
- Gross negligence
- Recklessness
- Products liability
- Premises liability
- Strict liability.
What Damages Can You Receive?
Loss of consortium is a claim for non-economic damages. You cannot easily calculate it. For an estimate, talk to a local attorney who has seen several cases before. Amounts can vary widely by jurisdiction.
To put a number in dollars on that loss is close to impossible. However, things courts can focus on when determining damages are:
- Living arrangements of the plaintiff and victim
- Length and stability of the marriage or relationship
- Whether you lived full time together
- Attitudes toward the relationship
- History of abuse
- Types of activities in which they were engaged
- Household services performed
- Role of the victim in keeping the family going (includes childcare, household management, and more)
- Amount of care or companionship between the plaintiff and victim
- Individual life expectancy
- Severity of injury received
Some states have laws that limit the amount of non-economic damages a person can receive., often brought about as part of tort reform. So, there may be a cap on the money you can receive. Some states don’t allow claims for loss of consortium at all. Some states only allow for loss of spousal consortium, others allow children deprived of a parent to make a claim, too.
Often damages received are small, more symbolic than anything else. However, there have been some very large rewards for loss of consortium.
Are There Problems that Trip Up Claims?
If you are the injured party and you make a loss of consortium claim for your spouse as part of your lawsuit, this may harm your case. In some states, this may mean that your spouse cannot be a witness in your case, and spouses are often the best witnesses.
Other parties have made claims, like an aunt with custody of the injured child. These claims rarely to never succeed, although some states are more lenient.
Be careful with settlements. If the injured party releases their claim in a settlement, their loved ones may give up their loss of consortium claim.
What Is the Law in Texas?
Texas allows loss of consortium claims for loss of a relationship with a child, parent, or spouse. Beyond the loss of the relationship, Texas law allows for a loss of financial support to be claimed. It also allows for loss of services, which include:
- Care of elderly parents or children
- Running errands
- Chores
- Household repairs N
Texas is a comparative fault state. If the injured party was at partial fault, that amount will lessen a loss of consortium claim. For example, if your spouse was in a car accident and found to be 20% at fault (compared to the other party’s 80%), your loss of consortium claim will be 20% lower than the final amount determined.
Also, a parental claim of loss of consortium for the child is only available if the child dies. Injuries, no matter how bad, do not lead to a valid claim in Texas. Stepparents, stepchildren, and siblings cannot bring a claim.
What Is the Law in Louisiana?
In Louisiana, there are three claims: loss of society, loss of service, and loss of quality in the relationship. Loss of society means companionship, love, and affection. Loss of service means unpaid services by the injured family member that you will now have to pay for someone else to perform. Loss of quality in the relationship includes loss of intimacy and things that make day-to-day living more difficult.
Parents, children, and spouses can claim loss of consortium. Sometimes, grandparents have a claim as well.
In Louisiana, the law has four steps that need to be proved.
- Another person or entity injured the spouse through negligent, reckless, or intentional misconduct.
- The injured person was lawfully married to the plaintiff at the time of the injury.
- The plaintiff suffered the loss of their spouse’s consortium.
- The loss of consortium was because of the defendant’s wrongful act.
This adds proof of marriage to the elements that need to be claimed. Several other states make this same change.
Do I Need a Lawyer?
Probably. Loss of consortium claims are complex and difficult to explain and prove. They have to be brought as part of a personal injury or death case, and only at a particular time. You will want someone beside you who has experience in taking a claim like this to court and settlements.
It’s also hard for someone away from the court system to know what a loss of consortium personal injury claim is worth. A lawyer who has handled many cases can give you a decent idea of what your claim should be.
You never expect the worst to happen, but when it does Morris and Dewett are here to help you. We are available 24/7, so if an accident happens, we will be there to take on the legal end and help you in any way we can. We serve Louisiana and Texas. Call us at (888) 492-5532 or visit our website.
SOURCES:
“Compensating Spouse and Family of the Injured: Loss of Consortium Claims “ (2023). AllLaw.
“Loss of Consortium Explained.” (January 4, 2021). Lawyer Monthly.
“Loss of consortium: The one claim you must discuss with your clients, but may strategically choose not to maintain through trial.” (April 2017). Plaintiff.
“What is Loss of Consortium?” (October 21, 2022). Forbes.
“What Is Loss of Consortium?” (n.d.). CloudLex.
