Many have heard of the term “loss of consortium” as a possible
damage claim in a personal injury matter—but what exactly does that mean?
Attorney Defines “Loss of Consortium”
If someone has been physically injured by the negligence or reckless conduct
of another, his or her spouse may have a separate claim for loss of consortium
in addition to the injured party’s claim for personal injury compensation.
To claim for loss of consortium, the spouse must prove:
- He/she and the injured person were married at the time of the injury
- By “clear and convincing evidence” that the spouse suffered
specific damages in the form of loss of affection, society, companionship
and “aid and comfort” of the injured spouse on account of
the spouse’s injuries or
- The spouse incurred “economic damages” for the loss of household
services the injured spouse would have performed or
- The spouse incurred expenses, or will incur such expenses in the future,
on account of the spouse’s injuries.
In theory, every spouse married to a person who was injured by the negligence
of another has a claim for loss of consortium. In practice, however, claims
for loss of consortium are hard to prove to an insurance company, or a
jury, unless the injured spouse was injured so severely as to be completely
dependent on the spouse for a long time—or was permanently disabled.
Is loss of consortium included in a personal injury claim in Colorado?
Since every married person who is injured has a spouse who, theoretically,
has a claim for loss of consortium, most insurance companies paying injury
claims will require both the injured person and the spouse to sign the
settlement papers—even if there has been no evidence presented,
or even discussion, about compensation for a loss of consortium claim.
The insurance company will not pay any extra on the personal injury claim
even if it requires the spouse to release his/her consortium claim in
the settlement. When challenged, the adjuster will probably say that the
consortium claim is “included” in the settlement amount offered
and will stand firm on that settlement amount, asserting that no settlement
will be finalized unless and until the spouse also signs the settlement
documents. In such a case, the settlement check will be made payable to
both the injured person and the spouse.
What factors go into calculating a loss of consortium claim?
When there has been a serious injury to a spouse, however, a loss of consortium
claim can be a significant part of the total personal injury claim. One
of the most common claims for consortium arises when a spouse serves as
caregiver to a seriously injured spouse. In that situation, the spouse
may be compensated for those services. Often the spouse will have to take
a leave of absence from work to provide the care. Sometimes the spouse
will have to stop working altogether (or lose his/her job) to provide
the care needed to the injured spouse—even if professional caregivers
are also taking care of the spouse. This claim is the easiest to prove:
the spouse’s loss of income is the claim for loss of consortium.
If the caregiving is to continue indefinitely, the consortium claim will
also include the future loss of income incurred by the spouse for as long
as reasonably expected. Even if the spouse keeps on working, but provides
caregiving at home when he/she is not working, those services are still
part of a claim for loss of consortium.
Loss of consortium can also include services provided by the spouse when
the injured spouse cannot perform those services. Childcare and parenting
services are typically included in this category. When a stay at home
mother of small children is seriously injured and is unable to perform
parenting tasks, the father may need to take a leave of absence from work
to perform those services, or may need to limit work hours or responsibilities
in order to care for the young children. When the spouse who had performed
the yard work or household repairs is injured, his or her spouse will
have to perform those additional duties for the household and is entitled
to be compensated for those services performed—the same as if someone
had to be hired to perform those duties while the spouse recovers.
The law recognizes that a marriage is more than a business partnership.
When a spouse is seriously injured, the marriage relationship is significantly
affected. Not only does the non-injured spouse have to perform all kinds
of caregiving and added household duties on account of the disabled spouse
but also, when a person is seriously injured, his or her spouse has lost
his or her life partner, best friend and soul mate almost the same as
if the spouse had been killed in the accident. The marriage relationship
has changed—and the change may be permanent. The intimacy of marriage,
including sexual intimacy, may be lost for a long time or forever due
to the serious injury to a spouse. No one is ever comfortable making this
aspect of a consortium claim to an insurance company, even though this
claim may be the most life changing to the spouse of a seriously injured
person. Nevertheless, experienced personal injury attorneys know how to
present this part of the loss of consortium claim with respect and sensitivity.
Loss of Consortium Depends on a Strong Personal Injury Case
Loss of consortium is a “derivative” claim, meaning that it
is as good a claim as is the claim of the injured spouse. If there is
a question as to how the spouse’s injury occurred, or who was at
fault for the injury, those same questions will apply to the spouse’s
claim for loss of consortium. If the injured spouse was partially at fault
for the accident, damages for the spouse’s claim for loss of consortium
will be reduced in the same proportion as are the damages for the injured
spouse’s claim reduced. Furthermore, because it is a derivative
claim, the loss of consortium claim will be paid out of the single insurance
liability limits of the negligent person who caused the injury. This means
that both the injured person and his or her spouse will share the single
“per person” policy limit of the applicable insurance liability policy.
How a Colorado Springs Personal Injury Lawyer Can Help
Experienced personal injury attorneys know how to assemble the evidence
to effectively present a loss of consortium claim to the insurance company—or
to successfully bring such a claim to trial before a jury. While there
are many reasons to engage an attorney to assist in a serious personal
injury claim, the identification and presentation of a loss of consortium
claim in a serious personal injury case is one big reason to consult with
an experienced personal injury attorney. When there are serious personal
injuries, insurance companies will want to settle those claims quickly.
Those same insurance companies will not advise you of the additional compensation
that should be paid for the damages suffered by the spouse. Experienced
personal injury attorneys such as those at Clawson & Clawson LLP will
meet with you at no charge to review all possible claims that may be made
in your case and can advise you whether the offer from the insurance company
is fair compensation for all the claims for you and your spouse.