Should You Sue For Loss Of Consortium?

Should I Sue For Loss Of Consortium?

Quick Answer: A claim for loss of consortium is often not appropriate even for the best marriages. If your marriage has problems, a claim for loss of consortium will not have sufficient value, the defense will try to prove that your marriage has problems and will use that to minimize your award. Additionally, a loss of consortium claim will create problems in the event of a divorce.

We believe loss of consortium should be claimed only in a very few cases with catastrophic injuries where the injured plaintiff requires assistance from the spouse.

The question of whether to sue for loss of services or loss of consortium should be answered after considering many facts about the case, your family, your desires, and the opinion of your accident attorney. This article will help you to ask questions of your personal injury lawyer and to decide whether to include a loss of consortium claim.

What Is Loss of Consortium?

Does a claim for loss of services or loss of consortium mean a sexual relationship between husband and wife? Yes, but it’s a lot 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 consortium may also apply to the parent of a child.

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 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.

When To Include A Claim For Loss of Consortium

Parents of a child: The ideal case for a loss of consortium claim is where a child has a catastrophic injury requiring care by one or both parents. For instance, my parents took care of my sister with brain damage for over 35 years and still ongoing. This left my parents without a normal life and financially devastated.

Spouse: If the injured person has injuries that substantially incapacitate him or her and the spouse must provide substantial assistance and care, a claim for loss of consortium should be considered.

Child of a parent: A child has no action for the loss of parental consortium in New York.

Can Unmarried Partners Make A Loss of Consortium Claim?

At the time of this writing, unmarried partners cannot file a loss of consortium claim. I don’t believe this will change because it will open the door to many more plaintiffs and involve the court’s time to determine whether the claim is legitimate. Additionally, it’s not necessary to allow unmarried partners to file a claim since same-sex marriage has been recognized in New York.

Reasons Not To Allege Loss of Consortium

Your spouse can still testify and it’s even more powerful

If a loss of consortium claim is not made, your spouse can still testify about how your injuries affected your spouse, your family, you, and every part of your daily life. The testimony is very compelling because your spouse tells the jury about these aspects and says but I’m not asking for any money.

Loss of consortium is rarely given

Money for a loss of consortium claim is awarded by a jury or judge after trial and is generally not included in a settlement between the parties (when there isn’t a decision by a jury or judge).

Most cases are settled. Many cases are even settled in the middle of the trial or just before a jury announces the verdict. Approximately 2% of tort cases in federal court are decided by a jury or judge (U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics Bulletin, Federal Tort Trials and Verdicts).

If you claim loss of consortium when your lawsuit is filed, your spouse will have to sign a release when your case is settled and can receive a share of the settlement money (see below).

More reasons not to allege a loss of consortium

  • 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. Your spouse will not be able to interfere with your lawsuit.
  • Successful loss of consortium claims are usually not worth much, however, in very few cases, it can be substantial. While every case is different, you could assume it to be worth approximately 10% of the total claim.
  • Juries often dislike loss of consortium claims 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 loss of consortium 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.
  • If the spouse has a felony conviction, the spouse will have to testify about it and it can negatively affect the jury’s verdict.
  • A less than perfect marriage can minimize the award and the defense will try to show that.
  • 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 can be asked questions like, “How many times per week did you have sex or sexual intercourse with your spouse before the accident?”, “How many times per week did you have sex or sexual intercourse with your spouse after the accident?” If a TMJ injury is one of your injuries, your spouse may even be asked about oral sex.
  • Your spouse will testify a second time in front of 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 may occur if divorce is contemplated by the spouse during the lawsuit.

Can You Get Money For Loss of Consortium In A Wrongful Death Case?

No. “New York law, which limits the recovery of damages for wrongful death to the ‘fair and just compensation’ of pecuniary injuries, has traditionally excluded from wrongful death awards such intangibles as loss of the decedent’s society, companionship, or consortium.” New York Reaffirms Exclusion of Loss of Consortium from Recoverable Damages in Wrongful Death Action, St. John’s Law Review.

How Much Money Can My Spouse Get For Loss of Consortium?

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!

Judge’s Instruction To The Jury Regarding Loss of Consortium (NY)

Following is the instruction read by the judge to the jury (in New York State) which instructs the jury how to determine the amount of money to award a plaintiff’s spouse for loss of consortium:

“If you find that the injured plaintiff’s (husband, wife) is entitled to recover, you will award (husband, wife) damages for the pecuniary loss which you find plaintiff (husband, wife) sustained by the loss of (his, her) spouse’s services and society.

In deciding the amount of such damages, you may take into consideration the nature and extent of the (husband’s, wife’s) services and society before the injury, including (his, her) disposition, temperament, character, and attainments; the interest (he, she) showed in (his, her) home; the social life of (his, her) family and in the comfort, happiness, education and general welfare of the members of the family; the services (he, she) rendered in superintending the household, training the children, assisting (his, her) spouse in the management of the business or affairs in which the spouse was engaged, if any; (his, her) acts of affection, love and sexual intercourse and the extent to which the injuries (he, she) sustained prevented (him, her) from performing such services and providing such society.

You will award plaintiff (husband, wife) such an amount based upon the evidence and upon your own observation, experience and knowledge conscientiously applied to the facts and circumstances as in your judgment will compensate (him, her) for the pecuniary loss that you find (he, she) has sustained and is reasonably certain to sustain in the future by reason of (his, her) spouse’s inability to perform such services and provide such society as a result of (his, her) injuries.”
(PJI 2:315 Damages—Derivative Action Re Spouse—Loss of Services

Philip L. Franckel, Esq.

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