Lack of Consortium: What You Want To Know | SDS Weblog

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When someone is seriously injured or killed due to another’s negligence, the spouse, parent, or child of the victim may be entitled to compensation on the basis of loss of consortium. Sometimes called “loss of companionship” or “loss of affection,” loss of consortium may be available to someone whose spouse, parent, or child suffered a wrongful injury. When the victim of wrongful injury is rendered unable to provide the same type of companionship, affection, protection, co-parenting, support, or intimacy they were previously able to provide, this has a dramatic impact on the relationship as well as on the life of the surviving loved one. This traumatic change and loss may entitle the victim’s family member to damages for loss of consortium.

While the legal definition of “loss of consortium” originally referred to the loss of sexual intimacy with a spouse who was killed or permanently disabled due to a wrongful injury, there are several other types of loss of consortium that can apply to marital or other familial relationships. These losses include:

  • loss of support, which can refer to financial support as well as to the moral or emotional support that close family members provide one another;
  • loss of services, including cooking, cleaning, and other household duties;
  • loss of society, which refers to the companionship enjoyed between spouses or other close family members; and
  • loss of quality, which refers to the quality of the intimate connection shared between spouses. This can include love and affection, companionship, sexual intimacy, and other sentimental aspects of the marital relationship.

Loss of consortium is a derivative claim, which means it is attached to a personal injury claim filed in a wrongful injury or wrongful death suit. If that suit concludes with an award of personal injury damages to the victim or their family, the victim’s close family member can then also file a loss of consortium claim to recover damages for their own, related losses that resulted from the accident. Any damages awarded for loss of consortium will be in proportion to the personal injury damages awarded. Therefore, if the victim was found responsible for some portion of negligence that led to their own injury or death, both the personal injury damages and the loss of consortium damages awarded will be reduced accordingly.

As with other types of emotional losses and related damages, such as pain and suffering or emotional distress, loss of consortium can’t be calculated with any simple formula or dollar amount, as there are no monetary bills or receipts attached. Instead, it is a type of non-economic damage, a kind of loss that is measured by more subjective, intangible means.

For example, a loss of consortium claim might be filed by the spouse of an oil rig worker who was killed in an oil rig accident due to employer negligence. Their attorney might support this claim based on how close the couple was before the accident and how much the surviving spouse depended on the deceased spouse for emotional support and shared parenting duties. Since these are emotional, intangible, and subjective issues—ones that can’t be easily quantified or translated into dollar amounts—they must be explored carefully so that appropriate damages can be determined.

In a different example scenario, a loss of consortium claim might be filed by the spouse of someone who was permanently disabled in a crash that was the fault of the other driver. In this case, while the accident victim did not die, their life has been permanently altered by the accident, as has their spouse’s life. Their marital relationship has also suffered permanent changes and damage. If the couple has children, the accident victim can also no longer assist with childcare, cooking, cleaning, and other household duties to the same extent as before. All of these factors help to support the loss of consortium claim.

Spouses, parents, and children of the victims of serious accidents are eligible to file loss of consortium claims, as they are considered close enough relatives to the victim to qualify for such a significant loss of this type. This includes adopted children and adoptive parents, as long as the adoption was full and legal. Siblings, step-parents, and step-children, however, do not have the right to file loss of consortium claims, since these familial relationships are not considered close enough to merit damages for loss of consortium. Parents of children who suffered non-fatal injuries are also not entitled to damages on the basis of loss of consortium.

The Texas capitol buildingLoss of Consortium: Texas Law

In claims of loss of consortium, Texas laws in many ways match those in the rest of the nation, but there are certain distinctions based on Texas state law to be aware of if you plan to file a claim in Texas. For example, while siblings of accident victims have been able to file loss of consortium claims in certain states, loss of consortium is not available to siblings in Texas, nor is it available to step-parents or step-children.

Furthermore, while parents in Texas can file a loss of consortium claim for their child’s wrongful death, they cannot file for loss of consortium if their child is still alive, even if the child suffered a catastrophic injury that resulted in permanent brain damage, paralysis, or coma. There is also a $250,000 limit on non-economic damages in Texas, which includes damages for loss of consortium as well as compensation for emotional distress.

Wrongful injury and wrongful death cases aren’t always black and white as far as negligence and liability for damages. Sometimes, the plaintiff filing a personal injury lawsuit is found to be at fault for some portion of the accident. When this happens, any damages they are awarded are reduced accordingly. In Texas, if an accident victim is found to be more than 50% responsible for their own wrongful injury or death, their family members cannot file for loss of consortium.

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A plaintiff in Texas can recover damages for loss of consortium that occurred in the past as well as loss of consortium that is anticipated in the future. For example, in the scenario of a construction worker who was killed in a construction zone accident that occurred because of negligence on the part of their employer, the wrongful death victim’s spouse could file for loss of consortium due to the protection, companionship, and financial support they were denied when their spouse died. Their claim could also cover damages for the loss of the financial support, protection, and companionship their spouse would have continued providing into the future had they been able to do so.

Another Texas law that is important to note is the standard personal injury and wrongful death statute of limitations. In most cases, this means that claims in the state of Texas must be filed no later than two years from the date of the accident or event that led to the wrongful injury or death and the loss of consortium. Claims filed after this two-year deadline are often summarily dismissed by the court.

Laws governing personal injury and loss of consortium claims can change over time, and existing laws surrounding these claims are complex. Filing deadlines and other legal intricacies are part of the reason why it’s so important to hire a reputable and experienced attorney who is well-versed in personal injury cases to handle your claim.

An attorney reviewing what the plaintiff will need to prove for a loss of consortium claimProving a Loss of Consortium Claim

Proving a loss of consortium claim is a complicated undertaking, since this type of claim is attempting to recover non-economic damages. It is difficult for attorneys and juries alike to assign monetary value to emotional losses such as the loss of companionship, affection, protection, or sexual intimacy. Even the loss of financial support, which can be included in a loss of consortium claim, can be difficult to calculate, as it involves not only wages already lost due to the accident but also future earning power that was cut off when the accident occurred.

Loss of consortium claims are also handled differently in court than other types of personal injury claims in that they do not require expert witnesses. Rather, the most “expert” witness for this type of claim is the person filing the claim—the wrongful injury victim’s spouse, parent, or child who has experienced the profound loss of the relationship and all of its benefits that they enjoyed until the accident that so drastically changed the entire family’s lives.

This is why proving the loss of consortium involves the plaintiff speaking on their own behalf about exactly what and how much they lost due to their loved one’s accident. The burden is theirs to provide compelling evidence of the loving, stable relationship they used to share with their family member, and the care and companionship that were lost due to the wrongful injury or death. The plaintiff might describe the depth of the connection and affection they once shared with their loved one, or the ways in which their loved one can no longer assist with childcare or household duties, or provide advice and support in the way they used to, even if they survived the accident.

Close friends or other family members who know the plaintiff and the accident victim well might also testify on the plaintiff’s behalf, as they can describe their own perspective of the relationship between the victim and the plaintiff prior to the devastating accident that changed everything. Still, plaintiffs’ own testimony and testimony from close friends or family members are highly subjective, and opposing attorneys will certainly try to discredit the plaintiff and any personal witnesses if possible.

Loss of consortium must be calculated carefully by the jury hearing the case, and will always be calculated in proportion to the damages awarded for the original personal injury lawsuit. Since there are so many intricate permutations of state and local laws, and since laws frequently change as new cases set new precedents, loss of consortium claims are best handled by a deeply knowledgeable and empathetic attorney who can secure a fair settlement to help their client move forward from a tragedy.

Slack Davis Sanger Can Help You Move Forward After an Accident

If you are seeking a personal injury or wrongful death attorney who will be empathetic and listen compassionately, contact Slack Davis Sanger. Our attorneys are caring listeners who can fight passionately for justice on your behalf. Our team has extensive experience and success in personal injury and wrongful death lawsuits, and can secure just compensation to help you move forward after a tragic accident.