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Loss of consortium occurs when family members are deprived of a family relationship because of injuries or wrongful death caused by another party.
Claims of loss of consortium are commonly made by the spouses of injury victims after car accidents, medical malpractice, or other personal injuries.
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A spousal relationship or domestic partnership must exist for you to have a loss of consortium claim. You must be married at the time of the injury to file a claim. You file your claim against the party who caused your spouse or partner to be injured.
Loss of consortium claims may also be filed by minor children or disabled adult children of an injured party. In some cases, parents may have a loss of consortium case if someone seriously injures their child.
A loss of consortium claim may be settled directly with the insurance company for the at-fault party. However, if the insurance company does not settle the claim, you would need to file a lawsuit against the at-fault party. Your claim is separate from any claim your injured spouse may have for damages.
A loss of consortium claim may include:
A loss of consortium claim covers almost every aspect of a spousal or parent-child relationship lost because of an accident or injury. It is considered a non-economic damage. Consortium claims do not cover economic damages or pain and suffering from the injury. Those claims belong to the injured party.
Most personal injury cases have a three-year statute of limitations. Cases not filed by that deadline are barred from being filed. There are some exceptions, but they are very limited.
Generally, the statute of limitations for a loss of consortium claim would be the same as the personal injury claim. The reason is that the loss of consortium claim arises from the same circumstances as the personal injury claim.
Most insurance companies evaluate consortium claims based on similar criteria used by the courts. Factors that jurors might consider when evaluating a loss of consortium claim include, but are not limited to:
The more times you answer “no” to these questions, the more significant the impact of the injuries on the family relationship. The jury examines how the injuries impact the relationship between the injured family member and the family members filing the loss of consortium claim. The greater the impact, the greater the compensation for loss of consortium.
You should be prepared to answer intimate questions in court about your relationship with your injured spouse. Also, your testimony needs to be compelling and convincing. Your attorney will help you choose aspects of your relationship with your injured family member that highlights the severity of the impact of injuries on your family relationship.
Massachusetts adopted a modified comparative negligence standard for personal injury claims. If an injured party contributed to the cause of their injury, their compensation may be reduced by their percentage of fault.
For example, if a jury rules that you were 20 percent at fault for the cause of your injury, the most you could receive for your claim would be 80 percent of the value of your damages. However, if you are 51 percent or more at fault, you are barred from receiving any money for your claim.
Some states allow contributory fault allegations from the personal injury claim to impact the loss of consortium claim. However, Massachusetts does not. Because the actions are separate, the courts ruled that a spouse, parent, or child should not share in the fault of the injured party.
Therefore, comparative negligence could impact the settlement amount or jury verdict for your injured spouse. However, your compensation for loss of consortium will not be diminished by contributory negligence claims.
If your family member was injured or killed by another party, you could be entitled to compensation for loss of consortium. Contact our law firm to schedule a free consultation with one of our experienced personal injury attorneys in Boston, MA.