What is a “Loss-of-Consortium” Claim? A loss-of-consortium claim is a claim for compensation brought by the uninjured spouse of an injured spouse against the negligent tortfeasor who caused the injury to the injured spouse.
Wew, that was a mouthful! Let me try to break that down.
Although the uninjured spouse of a New York accident victim has not suffered any “physical” injury, New York personal injury law recognizes that she or he often suffers a different kind of injury or loss, specifically, the loss of spousal “services” that the injured spouse would have continued to provide but for his or her injury. The “services” lost can include household services (cooking, cleaning, etc.), love, companionship, affection and sexual relations. Because this notion of “loss of consortium” is rooted in traditional principles of “man and wife”, it has not (yet?) been extended to cover loss-of-consortium claims by unmarried or gay couples who live together but are not married.
The “loss-of-consortium” claim is also called a “derivative” claim because the uninjured spouse’s claim depends on, and derives from, the injured spouses claim. The two claims are always brought together.
What Is a Loss-of-Consortium Claim Worth? Frankly, juries don’t usually award much for New York “loss of consortium” claims, and therefore, their “settlement value” is low, too. Although jury awards for loss-of-consortium claims vary, if you look at a lot of cases, and average them out, you will see (as I have) that they amount to, on average, about 10% of the injured spouse’s award. Big loss-of-consortium awards usually ride on the coat-tails of big awards for catastrophic or very significant long-term injuries such as brain damage, paralysis, incontinence, or loss of sexual function.
How Do Loss-of-Consortium Claims Lead to Trouble? One thing that can throw a monkey wrench into a New York personal injury lawsuit is when married couples divorce or separate while their injury and loss-of-consortium claims are pending. Sometimes the separating or divorcing spouses fight about how to spit up any settlement money, or whether to even settle at all. A New York personal injury lawyer can’t ethically represent one spouse against the other, so the lawyer’s hands are tied! The spouses have to work it out between themselves, or hire separate lawyers to represent their interests.
If the case goes to trial during or after a separation, it wreaks even more havoc. The separation or divorce saps the jury of any desire to compensate the loss of marital services, so the claim tanks! Even if the non-injured spouse refuses to drop the loss-of-consortium claim, and we usually recommend they do, the jury can award loss-of-consortium compensation only for the period before the separation.
Bottom Line: Is there a lesson to be learned from all this? Yes: Let your New York personal injury lawyer bring your loss-of-consortium claim with your injured spouse’s claim, but don’t expect too much from it, and, please, stay married, at least till the end of the case!