What is Loss of Consortium? Steps to File a Claim
A person involved in a personal injury case directly suffers physical injuries and emotional pain and suffering. However, for some who incur traumatic brain injury (TBI), spinal injuries, paralysis, fractured bones, and other severe bodily injuries, their spouses or legal domestic partners also suffer losses after the incident.
So, what is loss of consortium, and how can you file this claim in California? Learn more about LOC in this article to help you make a successful claim from the insurance carrier of the responsible party.
What is Loss of Consortium? Legal Definition
Loss of consortium is a personal injury claim. Under the California Civil Jury Instructions (CACI) No. 3920, this legal term refers to the loss of care, companionship, love, moral support, enjoyment of sexual relations, affection, and the ability to have children, where applicable. It can also apply to emotional distress, mental anguish, and loss of reputation.
If you are asking, “can a spouse sue for loss of consortium?” The answer is YES, a spouse can claim this against the person responsible for the injury or death of your spouse or legal partner. Claims for loss of consortium are generally derivative, which means that you have the right to claim damages deriving from the injuries and damages from the first claim (your injured spouse).
After knowing what loss of consortium is, it is also important to note what is NOT included in the claim. Remember that because the loss of consortium claim value only includes non-economic damages for loss, it does NOT include economic damage or losses for financial support, household services costs that would have been performed by the injured spouse or legal partner, personal services costs or medical bills for nursing, or loss of earnings by taking care of the injured spouse or legal partner.
The Elements of a Valid Loss of Consortium Case
Knowing what is a loss of consortium is not enough to successfully recover from the guilty party. For a claim of loss of consortium in California to be valid, the following elements should concur:
- The deceased or the injured spouse or legal partner was killed or injured due to the negligent or wrongful act of another party.
- The claimant was or is legally married or has a duly registered domestic partnership at the time the accident happened.
- The claimant suffered the loss of consortium from their spouse or legal partner.
- The loss was the direct result of the responsible party’s negligent or wrongful act.
What is a Loss of Consortium Claim in California?
Note that you can validly claim loss of consortium in California when the cause is either injury or wrongful death.
- Injury – if your spouse or legal partner has been involved in a personal injury case caused by another’s negligence or wrongful acts, he or she must have incurred injuries that caused him or her some physical limitations, or worse, brain injury that affect his cognitive, behavioral, emotional, and mental functions.
- Wrongful death – due to another person’s wrongful or negligent acts, your spouse or legal partner died. Death, besides the claim of economic and non-economic damages arising from this incident, you can also claim non-economic damages through a loss of consortium settlement claim.
Injury or wrongful death can be due to the following:
- Car accidents
- Slip and falls
- Dog bites
- Pedestrian accidents
- Motorcycle accidents
- DUI accidents
- Defective drugs
Who can file a loss of consortium claim?
A married person has a valid claim for the losses caused by any personal injury case committed against the other spouse. This is why we said that it is derivative earlier in this guide. But, first, the marriage between you and your spouse, the injured person/party, should be lawful at the time of the accident for loss of consortium damages to be considered. The claimant should then prove that a valid marriage exists.
For couples who are not married but are cohabiting, they can also make a claim for loss of companionship. It is required, however, that their domestic partnership should have been registered in the domestic partnership registry of the California Secretary of State before the accident. By virtue of their registered domestic partnership and the other elements of loss of consortium, they can have a valid claim.
Loss of consortium claim value
In considering what to include in the loss of consortium claim value, remember that this only applies to non-economic damages. Also, the recovery covers the harm caused at the time of the accident and future harm. Under CACI no. 3920, there is no fixed standard in determining the amount of the damages. You and your personal injury attorney should come up with a reasonable amount based on evidence and your common sense.
Remember, however, that the responsible party’s insurance has limits. Unless the insurance policy limit is opened that allows you to claim in its excess, your claim will be limited by this policy cap.
Action for Loss of Consortium: Filing a Claim in California
A loss of consortium settlement claim is filed against the insurance company of the responsible party. It is in a form of a demand letter, narrating the facts of the case, the pertinent laws, and the effects of the incident on the injured spouse’s marital relationship and ability to provide love, affection, and companionship.
It is important to prove that the above mentioned elements for a valid loss of consortium claim exist in your case. Give the carrier a reasonable opportunity to investigate the case and then wait for the offer.
To make sure that you are guided well throughout the process, you should seek legal advice from a personal injury lawyer.
Can the children of the injured party file for loss of companionship damages?
What is loss of consortium if the claimant is the child of the injured party? This refers to the loss of parental love, care, affection, and moral support (negligent injury). However, while we may agree that this is, indeed, valuable for the emotional growth and development of any child, parental loss of consortium remains to be a legal concept in California.
Sadly, in the State of California, the children of the injured parent are NOT permitted to claim for loss of consortium. Other states, like Massachusetts, Washington, Florida, Arizona, and Connecticut, among others, subject to their rules, allow parental loss of consortium.
As there remains to be a gap in California law, many are hopeful that we follow the precedents in other states. But, as of now, compensation for loss of consortium for children or family relations is not permitted, as upheld in Borer v. American Airlines, Inc. (1977).
Also, when the child is the one injured, similarly, a parent is not allowed to make a legal claim. The California Supreme Court ruled against the grant of this claim in Baxter v. Superior Court (1977).
The sad truth in California law remains that emotional distress from losing parental care and a child’s affection in family relationships appears to be less important than losing a conjugal relationship. But, who knows? Laws evolve, and this child relationship in an LOC case could be one of those that could hopefully change soon.
Contact a Personal Injury Lawyer Experienced in Loss of Consortium Cases
Earlier you asked yourself if a spouse can sue for loss of consortium. Now, you know the important information surrounding this claim.
If you, your spouse, legal partner, or friend has a strong claim for loss of consortium, do not hesitate to call Farahi Law Firm today. Our personal injury attorneys are available 24/7 and can help you claim the settlement you deserve.