Most wrongful death attorneys treat loss of consortium claims as an afterthought. This is not to say that loss of consortium is not a legitimate claim but it pales in comparison to primary personal injury claims.
The good news is most Hyannis wrongful death lawyers will include loss of consortium in personal injury claims unless stated otherwise. So it’s important that you discuss with your lawyer if you should add the claim to your case during your initial meeting.
What is Loss of Consortium?
Loss of consortium is the loss of comfort, companionship and services of a spouse due to an accident that wasn’t their fault. You have to be married to your spouse in order to claim loss of consortium. Girlfriends and boyfriends therefore don’t count in consortium claims even if they have been together for decades.
Most people assume that loss of consortium simply means a disruption of your sex life but it is usually more than that. The deceased spouse is obviously unable to perform household duties like childcare. This means that you have to pick up the slack so you are entitled to compensation for additional household chores. Also, if the death of your spouse has caused you to go into depression to the point that you have to take medication to manage it, then you are entitled to get compensation for the emotional distress caused by the death.
Does Loss of Consortium Add Value to Your Case?
This will depend on a number of factors. First, your lawyer will have to determine the value of your case. The value of a case where the plaintiff has lost a loved one is more than that of a case where the defendant is severely injured.
Second, the state of your marriage before the death of your spouse will be considered. If one of you had an affair, you were separated or going through a divorce, the value of your loss of consortium will be much less than if your marriage was solid.
Thirdly, the court will consider the level of damage the death of your spouse caused to your marriage. If you had been separated for a long time and you had started seeing someone else, the loss of consortium in this case would be much less valuable than if you had been living in marital bliss. Also, if you had children together and you were taking care of them together, the value of your consortium claim would be much higher.
Regardless of all the factors mentioned, if the tortfeasor’s insurer has to tender their policy limits based solely on your spouse’s wrongful death, a loss of consortium claim would not add any value. A tortfeasor is the person responsible for your loved one’s death.
Most car insurance companies normally have per accident/ per person policy limits. Since loss of consortium is a derivative claim, it will be capped under per person limit. A derivative claim is a claim brought by a person on behalf of a loved one for a wrong done to them, which they are unable to pursue. Bringing a consortium claim as part of a wrongful death claim that’s already worth policy limits wouldn’t add any value to your claim.
If your case goes to trial, then a consortium claim would add real value to your case. The amount awarded by the jury will depend on the evidence presented regarding how much the premature death of your spouse affected your marriage.
The Downsides of a Loss of Consortium Claim
Pursuing a loss of consortium claim can open up many areas of discovery to a defense lawyer that may be painful or embarrassing to discuss. You can expect to be questioned about your relationship before your spouse’s death. You should expect defense to ask you about your sex life before and after your spouse’s death. While most defense lawyers will professionally handle these questions, some take perverse pleasure from going into embarrassing details.
You should also expect other issues like infidelity, separation and any other past difficulties that your marriage has ever undergone to come up. In short, many old wounds will be re-opened during discovery. While it might be tempting to hide past marital difficulties, it’s not advisable because if you are caught, you will reduce your credibility which will reduce the value of your consortium claim.
Does Loss of Consortium Only Apply to Married Couples?
Below is a highlight of what happens to loss of consortium claims in cases under Massachusetts law where there is a non-traditional or modern family configuration.
Married at the time of death but going through a divorce. In theory, if you are the divorcing spouse you have a potential claim for a loss of consortium but many people in this situation prefer not to pursue the claim.
Not married at the time of premature death but were planning to get married. Unless you were legally married before the death of your spouse, you will not be compensated for loss of consortium.
Living together before untimely death. Filing a consortium claim in this case will not add any value to your case because your claim will be denied.
Same sex couple married before death of spouse. The gender of the partners does not affect a consortium claim. Bottom line is you have to have been legally married before the wrongful death in order to pursue consortium claims.
Minor, biological or adopted children. Minor children who were dependent on their deceased parent can bring loss of consortium claims.
Adult or college going children and siblings. No loss of consortium claim exists for them.
Handicapped adult children. If they were financially, emotionally and physically dependent on the deceased parent, then they may recover from loss of consortium.
Step children. The deceased parent must have adopted the child before their death in order for the stepchildren to seek loss of consortium claims.
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Despite all the downsides of loss of consortium we have discussed here, consortium claims can add some value to your case. We have discussed the downsides of pursuing consortium claims because most lawyers will do it as an afterthought.