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.