What Is Loss Of Consortium?
Everyone understands that a person injured in an accident has a potential case, but what about the spouse of an injured person? If you are married to someone who was injured in an accident, do you have a case?
The answer is: Yes!
The spouse of the injured party can have a viable loss of consortium claim. Loss of consortium is a cause of action available to a spouse of an injured person if emotional losses occur as a result of the negligent or wrongful acts of another. Loss of consortium is sometimes referred to as a claim for compensation based on the losses of relationship, defined in the law as loss of sex or support.
Loss of consortium damages are set forth in the California Jury Instructions (CACI 3920) as follows:
- Loss of marital relationship;
- Loss of the ability to have children; and
- Loss of love, companionship, comfort, care, assistance, protection, affection, society and moral support.
Creation of the Loss of Consortium Claim in California
In California, the loss of consortium cause of action was created in the 1974 seminal case of Rodriguez v. Bethlehem Steel Corp. The plaintiff, after just 16 months of marriage, suffered an injury as a result of a 600-pound pipe falling on him. This accident caused him to be paralyzed below the waist and unable to share sexual intimacy with his wife. Prior to this case, the spouse of a person killed in an accident could claim these types of losses, but not if the injured party survived. When ruling on the legal sufficiency of the loss of consortium claim, the California Supreme Court ruled that the non-physically injured spouse could recover “for loss of conjugal fellowship and sexual relations.”
David Drexler has successfully litigated many loss of consortium claims in Court. In 1986, David represented an injured man and his wife during a 5-week long trial, which resulted in a $7.9 million verdict. This verdict was even featured on the front page of the Los Angeles Times. The wife of the injured man received more than a million dollars via her loss of consortium verdict.
David’s client worked for a dye and finishing company when he was pulled into a carpet-rolling machine, mangling his body and severing his penis and testicles. In a moment, his marriage was changed forever. Once the injured spouse successfully proved product liability, his wife was able to recover on her derivative loss or consortium claim.
Is Loss of Consortium All About Sex?
For the most part, yes.
The strongest evidence in support of loss of consortium is a description of the couple’s sex life and diminution of their sex life because of the accident.
If the physically injured spouse’s personality has been affected (depression and diminution in the quality of life, etc.) to the point that it has caused a strain on the marriage itself, the non-injured spouse is entitled to monetary damages.
As described by the esteemed California Supreme Court Justice Stanley Mosk:
“Nor is the wife’s personal loss limited to her sexual rights. [Loss of] consortium includes ‘conjugal society, comfort, affection, and companionship’” An important aspect of consortium is thus the moral support each spouse gives the other through the triumph and despair of life. . . . [S]he is entitled to enjoy the companionship and moral support that marriage provides no less than its sexual side, and in both cases no less than her husband. If she is deprived of either by reason of a negligent injury to her husband, the loss is hers alone.”
Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal. 3d 382, 405-406.
Challenges In Proving Loss Of Consortium At Trial
The “issue” arises when couples are requested to discuss the nature and frequency of their sexual relations, both before and after the incident. Defense counsel is legally permitted to, and will, ask questions in discovery and depositions on this subject matter, regardless of the age of the plaintiffs. Due to the embarrassing and extremely personal nature of this intimate subject matter, some plaintiffs are reluctant to testify on this subject and, as a result, often end up dismissing what would be a valid claim.
Limitations In Prosecuting Loss Of Consortium Claims
California has various limitations affecting the value of loss of consortium claims, including the following:
- Spouses must have a marriage recognized by the State of California to recover. Cohabitants living together, even with “a stable and significant relationship… parallel to a marital relationship,” do not have standing to pursue a loss of consortium claim. Elden v. Sheldon (1988) 46 Cal.3d 267, 277.
- The spouse pursuing a loss of consortium claim cannot recover for nursing care or home health care provided to the physically injured person. The cost of such care is recoverable as an economic damage by the physically injured party. This limitation applies even if the spouse was to quit employment to provide such case. Rodriguez at
- A child is precluded from claiming loss of consortium based on the loss of a parent. Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441, 451. The California Supreme Court based its rationale on “the inadequacy of monetary compensation to alleviate that tragedy, the difficulty of measuring damages, and the danger of imposing extended and disproportionate liability.” Similarly, a parent may not recover loss of consortium damages for injury to his or her child.
Reduction Of Loss Of Consortium Damages
As loss of consortium damages are non-economic in nature, such damages may be reduced proportionate to the negligence of the injured spouse/family member. Craddock v. Kmart Corp. (2001) 89 Cal.App.4th 1300, 1309.
Pursuant to M.I.C.R.A. (California Medical Injury Compensation Reform Act of 1975), a spouse of an injured victim of medical malpractice may not recover more than $250,000.00.
In California, the spouse of an injured party can recover monetary damages to compensate him or her from the relationship losses suffered as the result of the negligent act of another, if the injured spouse recovers at trial. Even if the case settles, the loss of consortium plaintiff also is able to recover.
The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. This blog is not intended to, and does not, create an attorney client relationship, an offer of employment or a guarantee of success for clients of The Drexler Law firm. No information or representation contained in this post should be construed as an offer of employment, guarantee of success or the creation of an attorney client relationship with The Drexler Law firm, nor as legal advice from The Drexler Law Firm or the individual author. No reader of this post should act, or refrain from acting, on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer in the corresponding jurisdiction. There are time deadlines during which a case must be brought, according to your jurisdiction or state, and failing to abide by the jurisdictional statute of limitation rules can result in your case being time-barred.
Loss of consortium rights for spouses of injured victims vary widely across states, both substantively, and procedurally. In California, a loss of consortium claim is limited to the husband/wife relationship and is a derivative cause of action dependent upon the success of the injured spouse’s claim. If the case was litigated, both spouses would be plaintiffs and the loss of consortium claim would be filed as a separate cause of action in the same Complaint.
This loss of consortium claim is both derivative of, and distinct from, the claim of the spouse who was physically or emotionally injured. The claim is derivative in that the physically injured spouse must prove liability against the negligent wrongdoer as a condition precedent for the injured spouse’s loss of consortium claim to succeed. However, the loss of consortium cause of action is brought by the spouse of the person physically injured and the monetary damages related thereto are payable to this spouse, not the physically injured person.