What Is A Loss of Consortium Claim?
When an individual suffers a personal injury, it can impact their lives in many ways. Our civil system strives to “make the plaintiff whole,” by putting the injured person in the same position that they would have been in had the injury never occurred. However, a personal injury will often have consequences that extend far beyond the plaintiff herself. Other individuals, such as the injured plaintiff’s spouse, may also be impacted by the plaintiff’s injury. Therefore, California law recognizes a “loss of consortium” claim, a unique cause of action that may be brought by the spouse or registered domestic partner of a person who suffers a personal injury due to a third party’s intentional or negligent conduct.
The loss of consortium claim arises when an individual’s personal injuries, caused by the tortious conduct of a third party, deprives their spouse of their full support, services, love, companionship, society, affection, sexual relations and solace. Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 408. In other words, it is a separate claim that the non-injured spouse can file against the responsible tortfeasor for the harm caused to his or her marital relationship.
How Do You Prove A Loss of Consortium Claim?
To prove a loss of consortium claim, the following four elements must be satisfied: (1) a valid and lawful marriage between the spouse and the injured spouse at the time of the injury; (2) a tortious injury to one spouse; (3) loss of consortium suffered by the non-injured spouse; and (4) the loss was proximately caused by the defendant’s act. Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.
Valid and Lawful Marriage
To bring a loss of consortium claim, the non-injured party must prove that they were married or in a registered domestic partnership with the injured party at the time of the injury. Thus, if the injury arose prior to marriage or after the couple has separated, the non-injured party will not prevail in bringing a loss of consortium claim against the responsible tortfeasor.
Tortious Injury to One Spouse
The loss of consortium plaintiff must also prove that a third party’s intentional or negligent conduct injured their spouse or registered domestic partner. Most commonly, the loss of consortium claim is brought alongside the injured party’s personal injury claim in one single lawsuit. However, because it is a separate and distinct cause of action from the injured spouse’s personal injury claim, it may be brought independently even if the injured spouse did not file a lawsuit for their personal injuries. See e.g. Brumley v. FDCC California, Inc. (2007) 156 Cal.App.4th 312. In such cases, the loss of consortium plaintiff would still need to prove an actionable tortious injury to his or her spouse or registered domestic partner which resulted in loss of consortium.
Loss of Consortium Suffered By The Non-Injured Spouse
Additionally, the loss of consortium plaintiff must prove that they have been deprived of their spouse’s love, companionship, comfort, care, assistance, protection, affection, society, sexual relations and/ or moral support. This element is commonly proven by presenting evidence of the following: (1) the injured spouse is no longer able to perform certain household duties, chores, or is unable to take care of the couple’s children; (2) the injuries have caused the injured spouse to become more anxious, depressed, or irritable, thus putting a strain on the marital relationship; (3) the injured spouse can no longer engage in recreational activities that was once enjoyed by the couple prior to the injury producing accident; and/or (4) demonstrating a change in the desire, ability or frequency of the couple’s sexual relations.
Finally, the loss of consortium plaintiff must prove that the harm caused to the marital relationship resulted from their spouse’s personal injuries. Thus, if the loss of consortium was caused by an outside factor, such as an extramarital affair, the non-injured spouse would be unable to claim damages through a loss of consortium claim.
What Damages are Recoverable?
If proven, the loss of consortium plaintiff may recover “non-economic” damages, defined as “subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation.” Cal. Civ. Code §1431.2(b)(2). In effect, “non-economic” damages are intended to reasonably compensate the loss of consortium plaintiff for the past and future loss of the injured spouse’s companionship and services. In particularly tragic cases involving a permanent injury, the loss of consortium plaintiff may recover damages for the remainder of the injured spouse’s expected lifespan. See Truhitte v. French Hospital (1982) 128 Cal.App.3d 332, 352-353. Notably, because the loss suffered by the non-injured spouse is intangible, there is no concrete formula that can be used to calculate the damages to be awarded. Rather, it is up to the fact-finder to determine a reasonable damages award, based on the evidence presented about the marital relationship pre- and post-accident.
Mastagni Holstedt Can Help
To many individuals, bringing a loss of consortium claim for the harm suffered by their marital relationship can feel intimidating. Understandably, some might find it difficult or uncomfortable having to discuss how their marital relationship, sexually, emotionally and physically, has been impacted by their spouse’s injuries. If you or your spouse have been tortiously injured by a third party, Mastagni Holstedt, A.P.C. can help. Our experienced team of attorneys have the skills necessary to protect your privacy concerns while also ensuring that you recover the full extent of your damages.
*Please be advised that this article does not discuss all of the nuances associated with a loss of consortium claim. Rather, this article is intended to be a brief overview of the claim and the potential damages available*