Loss of consortium is a unique type of personal injury claim, as it is not the injured victim that files the claim. Instead, it is the parent, child, or spouse that files the loss of consortium claim against the defendant who caused the accident.
“Loss of Consortium“ Is Not a Standalone Claim
To file a loss of consortium claim, your qualifying relative must have suffered a personal injury caused by someone else. Without an injury to a relative, you have no loss of consortium claim. You are not eligible for damages unless you suffered an injury yourself.
Why Does the Law Allow Loss of Consortium Claims?
Why do non-victims deserve compensation from a defendant whose negligence harmed someone else? Because of the relationship between the person filing a loss of consortium claim and the victim. If your family member suffers a serious injury, it can hurt you, too, in many different ways.
What Exactly Is “Loss of Consortium”?
“Loss of consortium” means the loss of the benefits of a relationship due to injuries caused by someone who harms the claimant’s family member.
More specifically, “loss of consortium” refers to the loss of companionship, affection, comfort, society, solace, moral support, sexual relations, the ability to have children, and the operation and ability to maintain and operate a household.
The Measure of Damages
Not all loss of consortium claims are created equal. This stands to reason; not everyone with an injured family member suffers to the same degree. Some of the factors that affect the value of a loss of consortium claim include:
- In a spousal claim, the life expectancy of both spouses and the extent of the damage to the marital relationship. This type of claim is most valuable if the loss of consortium led to divorce.
- In a spousal claim, the length of the marriage.
- In a spousal claim, the stability of the marriage. The more stable the marriage prior to the accident, the greater the value of the loss of consortium claim.
- The humiliation, embarrassment, shock, and anguish suffered by the loss of consortium claimant.
- The level of care and companionship that the accident victim formerly provided the claimant (especially in a child/parent claim).
- The physical pain and suffering endured by the injury victim.
- Whether the injured victim lost the ability to communicate.
- Loss of reputation.
- Loss of companionship.
- The emotional distress suffered by the claimant.
- Whether the accident victim and the claimant lived together.
- The size of the impact that the victim’s injury had on the relationship with the claimant.
Different courts will weigh these factors in different ways.
Proving Your Claim
In law, the truth matters nothing without evidence to support it. Accordingly, you might need an expert witness to prove the extent of your loved one’s injury. They might testify, for example, that your spouse’s injury typically results in a loss of sexual function. You might also need medical records to prove the severity of the victim’s injuries.
Another way of proving loss of consortium is through the testimony of other family members, including the injured victim. Two problems arise with this approach, however:
- The witness is likely to be biased, which could detract from the credibility of their testimony; and
- Establishing certain aspects of loss of consortium (lack of sexual intimacy, for example, or the quality of a marriage) can subject the witness to embarrassing and humiliating questions by the opposing party’s lawyer.
Establishing loss of consortium between spouses is often a stressful and distasteful experience.
Special Case: Wrongful Death Claims
If a personal injury victim dies from their injuries, a wrongful death claim arises in favor of any surviving spouse, children, and parents. Although wrongful death damages don’t include anything that is called “loss of consortium,” Texas courts often award the functional equivalent:
- Psychological pain and mental anguish experienced by survivors; and
- Lost love and companionship.
These two components of damages (plus certain forms of financial compensation) can add up to quite a lot of money.
Special Case: Relying on an Auto Insurance Policy for Compensation
Texas auto accident liability policies do not provide for loss of consortium damages. It may be true that you suffered a loss of consortium; it’s just that the insurance company’s obligation to pay is limited by the terms of the policy it issued.
You might be entitled to compensation, but you will have to seek it from the at-fault driver, not their liability insurance policy. If the at-fault driver lacks the ability to pay, you could be out of luck.
Special Case: Company Defendants
If the party whose misconduct injured your loved one was an employee acting within the scope of their employment at the time of the accident, your relative can probably sue their employer. You can also file and win a loss of consortium claim. If the company is of reasonable size, they can probably afford to pay your claim.
Understanding Loss of Consortium With the Help of an Experienced Fort Worth Personal Injury Attorney
The emotional and relational toll of an injury on loved ones can be difficult to overstate. To ensure you pursue a comprehensive claim, consider seeking the counsel of a Fort Worth personal injury attorney. Contact our law office today at (817) 380-8921 to schedule a free initial consultation at Anderson Injury Lawyers.