Should You Sue For Loss Of Consortium?

 

Did you think a claim for loss of services or loss of consortium refers to a sexual relationship between husband and wife? It does but it’s more than that.

Often called a claim for loss of services, loss of services is really only one part of a claim for loss of consortium.  The “quality” of a marital relationship includes affection and emotional support but it also includes economic losses:  loss of services and loss of support.

Loss of services includes the value of chores and other work the spouse did around the house. For instance, if your spouse can no longer clean the house or repair a toilet, you may have to pay a housekeeper or a plumber.

Loss of support includes the amount of money the injured spouse is no longer able to contribute to the spouse or family because of the injury. This is in addition to the injured person’s lost wages and is for the spouse.

But should your lawsuit include a claim for loss of consortium? This should be answered after considering many facts about the case and family, your desires, and the opinion of your accident attorney.

We believe loss of consortium should only be claimed in a very few cases with serious permanent injuries where the plaintiff requires assistance.

Following are reasons not to allege loss of consortium for a spouse:

  • Money for a loss of consortium claim is awarded by a jury after trial. It is generally not included in a settlement and thus can negatively impact the amount of money you receive if you have to share it with your spouse (see below).
  • Successful loss of consortium claims are usually worth little to nothing, however, in some cases, it can be substantial (ask your injury lawyer if a loss of consortium is worthwhile for your case).
  • Juries often dislike them and may penalize the plaintiff for alleging the claim. Juries often think of marriage as “in sickness and in health, till death do us part!”
  • Alleging a claim can minimize the impact of your injuries on a jury which could result in a smaller award than you may have obtained without alleging the claim.
  • A less than perfect marriage can minimize the award so the defense will try to bring that out.
  • Your spouse can be called to testify in detail at a deposition about the most intimate aspects of your marriage and all other aspects of the loss of consortium claim.
  • Your spouse will testify a second time in front of six jurors at a public trial. In addition to embarrassment, it provides the opportunity for the defense to bring out inconsistencies in the prior deposition testimony. If your spouse does not make a loss of consortium claim, your spouse can still testify at trial on your behalf without testifying at a deposition about the same issues.
  • Loss of consortium is also known as a derivative claim (based on another claim-the plaintiff’s claim).  Your spouse will have a separate claim and can retain a different lawyer. This more usually occurs if divorce is contemplated by the spouse during the lawsuit.
  • Your spouse will have to agree to sign release before the insurance company will issue a settlement check. Both spouses must agree if there should be a division (sharing) of settlement funds, and how much goes to each spouse.
  • If a loss of consortium was not alleged in the complaint, your spouse will not have to know what your accident case settled for and how much money you received.

If your marriage has problems, a claim for loss of consortium will not have sufficient value and will pose problems in the event of a divorce. However, for the reasons stated above, a claim for loss of consortium is often not appropriate even for the best marriages.

There are at least four cases in New York State during the last ten years where a spouse was awarded near or more than $1,000,000.  Each of these cases involved a very serious injury.  Consider carefully before your lawyer includes your spouse in your lawsuit!

Philip L. Franckel, Esq.