Loss of consortium is one of many types of damages available in a personal injury claim. Unlike for other damages, such as medical expenses and pain and suffering, the injured person’s spouse must file a loss of consortium claim. The injured person cannot file a claim for loss of consortium. Loss of consortium claims most commonly arise in catastrophic injury cases, such as severe motorcycle accident claims.
What Is Loss of Consortium?
Loss of consortium is a form of damage to a marital relationship, both intimate and ordinary, caused by severe injury or disability. Missouri law defines loss of consortium as loss of:
- Society and companionship,
- Assistance with household chores such as cleaning the house or mowing the lawn,
- Affection, or
- Sexual relations.
You don’t have to suffer all these losses to qualify for a loss of consortium claim. To qualify for loss of consortium damages, your spouse must have suffered bodily injury, and your losses (as stated above) must arise from this injury.
For example, your spouse might have become unable to have sex due to a back injury. As another example, if your spouse suffers from a loss of ability to communicate due to an accident, you will lose the benefits of companionship.
What You Need To Win a Loss of Consortium Claim
To win a loss of consortium claim, you need to prove all of the following elements on a “preponderance of the evidence” (more likely true than not) basis:
- Your spouse suffered a bodily injury for which they are entitled to compensation;
- The defendant caused your spouse’s injuries through negligence, gross negligence, or intentional misconduct;
- You suffered a “loss of consortium” as defined above; and
- Your spouse’s injury was the proximate cause of your loss of consortium.
Even if your spouse wins their personal injury claim, you won’t necessarily win your loss of consortium claim.
The Value of Expert Testimony
Expert testimony can convince a jury even when your own testimony cannot. Expert testimony often works for two reasons:
- The expert is a recognized authority in their field, which gives them credibility in front of a jury. Even in settlement negotiations, the opposing party knows that if you have an expert on your side, your chances of winning in court are good,
- The expert has no personal stake in the outcome of the case. They, therefore, have less reason to offer a biased opinion. Don’t use a relative or an associate as an expert witness, even if they otherwise qualify.
A psychologist or a psychiatrist might testify concerning the emotional distress your spouse’s disability has caused you. A physician might be able to testify on the activities that your spouse can no longer perform. Other experts might also be useful.
Sometimes you must file a loss of consortium claim within 30 days of your spouse’s claim. Speak with your lawyer (well before the 30-day deadline) to discover whether this limitation applies to you.
How Much Is Your Claim Worth?
The value of a loss of consortium claim is highly subjective, just as your spouse’s claim for “emotional distress” or “mental anguish” is highly subjective. The court will consider:
- The magnitude of your loss;
- Your age (the younger, the better);
- Your spouse’s age (the younger, the better); and
- The likelihood that your spouse will recover.
If your spouse’s disability is permanent, your compensation will depend partly on your estimated remaining life expectancies.
Do You Feel Comfortable Discussing the Intimate Details of Your Relationship With Strangers?
Regardless of whether you go to trial, you must answer some uncomfortable questions to establish your claim. These questions might include:
- How often did you have sex with your spouse before the accident?
- How often do you have sex with your spouse now?
- Can your spouse still have sex? To what extent?
- Have you ever been unfaithful to your spouse? To the best of your knowledge, has your spouse ever been unfaithful to you.?
- How often do you and your spouse argue, compared with before the accident?
These questions can take place in a deposition or in open court. The other party’s lawyer might ask you as many embarrassing questions as possible to get you to drop your claim or settle for a small amount.
Insurance Policy Limits
Loss of consortium is an addition to many other claims asserted by your injured spouse. These might include medical expenses, lost earnings, and pain and suffering. Your loss of consortium claim will be tacked on to these. The problem you might run into is that if you are claiming against an insurance policy, your spouse might already be claiming an amount greater than insurance policy limits, even before you file your loss of consortium claim.
That will leave no more money to pay your loss of consortium claim unless the liable party happens to be a profitable business or a wealthy individual. Defendants that typically possess ample insurance resources include:
- Commercial truckers;
- On-duty Uber/Lyft drivers;
- On-duty employees who were acting within the scope of their employment when the accident occurred (because you can claim against their employer); and
- A nightclub that served an intoxicated guest who then caused the accident that injured your spouse.
An experienced personal injury lawyer might be able to identify wealthy defendants not listed above.
Find a St. Louis Personal Injury Lawyer With Experience Handling Loss of Consortium Claims
Loss of consortium claims can be problematic for various reasons. They are derivative, meaning that you only win if your spouse wins. Cross-examination can be stressful, and compensation can be challenging to collect. These are three of the many reasons why you should at least schedule a free consultation with a St. Louis personal injury lawyer concerning your claim. Call (314) 444-4444 to contact a personal injury lawyer at Schultz & Myers Personal Injury Lawyers.