Following an accident caused by another's negligence or wrongdoing, there are a number of damages you can seek from the person who injured you and/or their insurance company. These claims include compensation for medical bills, pain and suffering, missed time off of work and lost job opportunities. If the circumstances are right, your personal injury attorney might even tell you that you should seek punitive damages for the defendant's egregious or willful behavior.
But did you know that your spouse might also have a claim for your injuries despite the fact that they weren't physically injured in your accident? That's right, your spouse may be able to claim a loss of consortium. Though you may have heard of this before, you may not know what it means and when a claim for loss of consortium is available. Here is a basic overview.
What Is A Claim For Loss of Consortium?
A claim for loss of consortium is a separate legal claim that can be filed by the spouse of someone injured (plaintiff) as a result of the defendant's negligent or reckless conduct, in addition to the personal injury claims available to the plaintiff.
How Do I State A Valid Claim For Loss of Consortium?
In order to state a valid claim for loss of consortium, the plaintiff's spouse must prove:
- That at the time of the accident, he or she was married to the plaintiff; and,
- That by clear and convincing evidence, the spouse suffered specific damages, such as the loss of affection, society, companionship and/or aid and comfort of the plaintiff due to plaintiff's injuries; or,
- The plaintiff's spouse incurred economic damages for the loss of household services that the injured plaintiff would have normally performed; or,
- The plaintiff's spouse incurred expenses, or will incur expenses going forward, as a result of the plaintiff's injuries.
Theoretically, every spouse of an injured plaintiff has a claim for loss of consortium. In reality, however, claims for loss of consortium are difficult to prove unless the plaintiff was injured so badly that they become completely dependent on their spouse for a period of time or become permanently disabled.
Loss of Consortium And Insurance Settlements
Furthermore, when it comes to reaching a settlement with the defendant's insurance company, most insurance providers will require that both the plaintiff and their spouse sign the settlement papers – even if there has been no discussion as to the spouse's entitlement to damages for loss of consortium. This is because insurance companies are in the business of paying out the least amount of money as possible and will require spouse's to release their loss of consortium claims to avoid paying any additional compensation. If you are the spouse of an injured plaintiff and you sign the settlement agreement, then the insurance company will argue later that you gave-up your right to damages and/or any damages you incurred by way of loss of consortium were included in the settlement amount. This is why it is so important to review your case with a knowledgeable personal injury attorney—like those at the Law Office of Jeremy Rosenthal—beforesigning any agreement with the insurance company.
Common Factors Included In Calculating Damages For Loss of Consortium
Though the legally significant factors giving rise to a valid loss of consortium claim will vary depending on the circumstances of your case, there are some typical or general factors that we see in the majority of loss of consortium claims. For instance, when the spouse serves as a caregiver for a seriously injured plaintiff. In this situation, the spouse will often times have to take a leave of absence from work to provide care to the plaintiff and can be compensated for providing caretaker services as well as for the spouse's loss of income during this time.
In other cases, the spouse of an injured plaintiff may have a claim for loss of consortium based on the spouse's performance of household functions that would have otherwise been completed by the plaintiff. For example, if the spouse needs to assume the role of child caretaker or custodian because the plaintiff cannot perform these roles, then the spouse can receive compensation for completing these tasks.
Though not always a comfortable claim to make, spouse's of injured plaintiffs can also receive damages for loss of consortium if the (sexual) intimacy of the marriage relationship suffers as a result of the plaintiff's injuries. An experienced personal injury attorney can present this claim with sensitivity.
If your spouse was injured as the result of someone else's conduct and you incur damages as a result, you should speak with a personal injury attorney right away. The personal injury lawyers at the Law Office of Jeremy Rosenthal have decades of experience representing clients in loss of consortium cases and are here to help you. We can gather the evidence needed to effectively present your claim to the insurance company or at trial. Call us today for a free consultation at (303) 825 – 2223, or visit us online.