GPSOLO January/February 2010
Loss of Consortium:
When Should You Bring the Claim?
Loss of consortium is a cause of action that is available to family members of a person injured or killed by the wrongful acts of another. Clearly, it should be claimed on behalf of all possible family members in a death case. In some jurisdictions it is available for a spouse, parent, or child in the situation of a family member’s injury. This article will discuss the decision-making process of a plaintiff’s attorney when faced with a potential claim on behalf of the spouse of an injured person. Often, the answer is not clear-cut. The hard question is when to bring a claim for the uninjured spouse to the jury.
History of the Cause of Action
The damage suffered by the loss of the services of one’s spouse was first recognized under the English common law as a husband’s claim. A wife, being simply chattel of the husband, had no cause of action for her own injury or for injury to her husband. In the United States, after the passage of the Married Women’s Property Act by the various states starting around the 1850s, the courts began to recognize the fact that such a claim should be equally available to a wife. Justice did not move swiftly, however. The case that is generally regarded as the first to recognize a wife’s right to bring a claim for loss of consortium of her negligently injured husband is Hitaffer v. Argonne Co., 183 F.2d 811 (D.C. Cir., 1950). Further recognition took decades to achieve across the country, state by state. In some jurisdictions it is a matter of the common law, and some states have enacted statutes, such as Maine’s 14 M.R.S. § 302 (2009): “A married person may bring a civil action in that person’s own name for loss of consortium of that person’s spouse.” Today, if state law recognizes an action for a husband for loss of consortium owing to the physical injury of his wife, it will also recognize such an action for a wife.
In all jurisdictions where it is recognized, lost consortium has remained a claim that can only be brought by a marriage partner. But this, too, might be evolving slowly. A number of courts have struggled with cases that have brought to issue the right of a person in a long-standing heterosexual relationship to claim lost consortium, as well as the right of a same-sex partner to do so. Elden v. Sheldon, 46 Cal. 3d 267 (1988) presents a good illustration of the debate. The California Supreme Court ruled that a claim for lost consortium is not available to a committed but unmarried partner, regardless of the level of that commitment. A scathing dissent highlights the level of contention brewing on this issue. Although a number of policy reasons are cited along the way to denying lost consortium claims to seriously committed but unmarried partners, it appears to me that the main concern is with opening the field of potential tort claimants to an undeterminable number. This debate will be a topic for many more commentators and courts for the foreseeable future.
Some jurisdictions break the claim into two components: the functional and the sentimental. Such distinction between the loss of services and the loss of affectionate or sexual relationship is rejected by other courts, which reason that the loss is truly to the marital unit itself and cannot be divided into components. It seems to me that, even in jurisdictions that designate the two components in jury instructions, as does Illinois, the best approach to presenting the loss is by explaining what the marital unit has suffered. Thoughtful testimony by the uninjured spouse that keeps this concept as the main theme will best convey to the jury the true loss that can result from a severe, permanent injury.
Evaluating a Case
A loss of consortium claim is certainly one that should be considered whenever a married client suffers a serious injury. It’s good to explore the potential, along with all other elements of damage, at the first consultation with a new client. Every marriage is different, as is every claim for damages and every injury. The potential loss of consortium in a given situation may be nonexistent. In other circumstances, it may be nearly as devastating as the physical injury. Does the spouse even have an interest in being involved in the litigation, in making a claim? If the spouse is reluctant, the claim is not going to present well to a jury. You must find out the most private, intimate aspects of your clients’ marriage, and make sure both spouses understand that others will be getting this information, too. They will be subjected to rigorous questioning in deposition and will need to testify to a jury of strangers about the intimate details of their marriage. If one of the spouses is unwilling to allow such an intrusion, then it’s best simply to eliminate the idea from the beginning.
If the marriage had been shaky before the injury, that point needs to be discussed in detail. You will want to know about any prior legal or voluntary separations, any court filing for orders of protection, or any criminal charges of abuse. Find out if they have, either together or individually, consulted with a marriage counselor or sought marital help from another source, such as a religious advisor. Not only do you need to know all this in order to properly advise your client regarding bringing a loss of consortium claim, but posing these questions in the beginning will give the clients an idea of the questioning they can expect from the other side as the claim proceeds.
Including loss of consortium in any pre-suit settlement discussions is prudent in most cases of severe injury. However, if you are dealing with an auto case, keep in mind that most liability policies are written in such a way that loss of consortium claims are included within the “single injury” limits. Get a copy of the applicable policy to verify whether this is the case. If the physical injuries are severe, a loss of consortium claim is not likely to provide additional recovery beyond the policy limits. Yet, in a situation where the negotiable settlement amount for the physically injured spouse appears to be slightly under the policy limits, a loss of consortium claim may be just what is needed to reach the full limits. Also, if the injury is one that comes within a workers’ compensation scheme, most jurisdictions hold that the spouse’s loss of consortium claim is subsumed within the exclusive remedy provisions of the statute. However, if a negligence suit against a non-employer third party is being contemplated, some jurisdictions hold that a settlement in such a suit that apportions some amount to a loss of consortium claim for the non-employee spouse will thereby reduce the amount of workers’ compensation benefits required to be reimbursed to the employer.
Preparing a Case
If you have gone beyond negotiating a settlement with an adjuster and it’s time to file suit, further discussion is warranted. At this point, the couple needs another consultation. Discuss again the intrusiveness that is bound to occur. Talk at length with the spouse bringing the consortium claim. You must satisfy yourself that the spouse will be able to discuss openly and freely the variety of problems that have been caused to the marital unit. And yet, there needs to be a certain amount of restraint. The spouse cannot whine or focus on him- or herself.
If, after this lengthy consultation, you decide that the suit will not include a loss of consortium claim, another consultation is required. Generally, a consortium claim must be brought at the same time as the physically injured spouse’s claim. Certainly, it is best practice to do so. If you are unwilling to bring the consortium claim but your clients disagree, you must give them sufficient time to find another lawyer. If the clients are willing to take your advice and not bring a consortium claim, be sure to document that decision.
Prosecuting a Claim
Even after you have filed the claim, the decision should be revisited prior to trial. A loss of consortium claim can be both a hindrance and a blessing for an imaginative attorney representing the plaintiffs. It is challenging to sufficiently elicit testimony from a spouse that will really express the loss to a jury, particularly in the courtroom. Choosing the right client to tell this story is important; it will backfire if you don’t handle it correctly. Keeping the testimony focused on the loss suffered by the family unit, rather than the spouse individually, will require work. But unless it can be presented to the jury in this way, you are in danger of causing the spouse to appear to the jury as a greedy whiner, simply looking to gain monetarily from his or her spouse’s pain. At that point, you are handing a gift to your opponent and running the risk of juror backlash against your clients.
Strongly consider running a focus group on this issue. The concept of “for better or worse, in sickness and in health” resonates with most people. Would it be better to have a spouse who can testify well and at length about the damage that’s been caused to every aspect of his or her partner’s life? If the wife of an amputee testifies that she worries about her husband’s safety all the time when he’s away from home alone, is that more powerful than any testimony about the household chores she’s been forced to take over for him? Focus the uninjured spouse’s testimony on concerns over the injured spouse’s well-being, concrete and descriptive examples of the injured spouse’s pain and suffering observed on a daily basis, and the impact such suffering has had on the family. The marital love will shine through and give the jury the opportunity to imagine for themselves the unspoken scenarios much more easily. Besides, people often have an easier time talking about the damage done to the person they love the most in the world, rather than themselves.
Certainly, there are times when presenting a loss of consortium claim to a jury is advisable. If the spouse, owing to his or her own illness or injury, had been dependent on the now physically injured spouse, the loss is clear. If the physical injury has caused the inability to participate in intercourse, this is a claim worth talking about. It is my opinion, however, that such cases are the exception rather than the rule.