A Quick Guide To Loss Of Consortium Claims
If you were injured, plan to file a personal injury lawsuit, and have a spouse, your lawyer may want to discuss the option to file a loss of consortium claim alongside your main case. A loss of consortium is generally filed by the spouse of the injured person and involves monetary restitution for physical and emotional intimacy that may be lost due to your injury. For example, if you and your partner are unable to continue your previous sex life, if your partner suffers from stress and anxiety about your condition, or if you are unable to connect emotionally with your spouse due to PTSD or other emotional issues stemming from your injury, your spouse may file a claim for loss of consortium.
Identifying Loss of Consortium
Often, loss of consortium can be difficult to assess. In instances where a spouse is killed or severely, permanently injured in such a way that they are no longer able to maintain sexual relations with their spouse, loss of consortium can be obvious. However, loss of consortium covers many different areas as well. For example, if a spouse is unable to complete household chores or help provide supervision of children after an accident, their spouse may file for loss of consortium. Also, loss of consortium may occur when an injured spouse is unable to communicate with their uninjured spouse or unwilling to communicate due to emotional issues stemming directly from their injury.
Loss of consortium is generally reserved for legal spouses. However, some states recognize the right of a same-sex, unmarried partner to file for loss of consortium and, on occasion, children or parents can file for loss of consortium.
To identify whether you have a strong case to file for loss of consortium, you will have to thoroughly consult with your personal injury attorney about your current situation and the losses both partners have experienced due to the injury of one spouse.
Proving Loss of Consortium
Loss of consortium can be difficult to prove because you will be required to establish the state of the relationship before the spouse was injured and then show how the relationship has changed since their injury. This may involve extensive questioning of both spouses and friends or relatives. Past problems in the relationship, including instances of infidelity or abuse, may be brought up and made public. Also, current problems with the relationship or an impending divorce may negatively affect a loss of consortium claim, even if they are directly related to the injury. For some couples, the public examination of their personal relationship during the already difficult period after a severe injury may be stressful.
Payment for Loss of Consortium
Most insurance policies have a limit on how much can be paid out for a single injury. This amount includes any awards made for loss of consortium, and if the limit has already been reached, it is less likely that loss of consortium will be awarded to a couple. However, you do have some options to pursue an award for loss of consortium if you are entitled to it even if the limit has already been reached. You may be able to sue additional defendants, pursue umbrella policies, or collect directly from the defendant.
While loss of consortium can be emotionally difficult to pursue, it is important to consider whether you are experiencing loss of consortium while the primary lawsuit against the defendant is filed. In most cases, loss of consortium most be filed jointly with the primary case and is paid out to both spouses as opposed to just the uninjured spouse. If you wait too long, you may lose the compensation that you are entitled to.
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