If your husband or wife is injured in an accident in California, both you and your spouse can sue the at-fault party. Though whereas your spouse would sue for medical expenses, lost wages, and pain and suffering, you would sue only for loss of consortium.
Loss of consortium is “the loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support; and the loss of the enjoyment of sexual relations or the ability to have children.” In other words, your spouse’s injuries negatively affected your marriage, and you deserve damages.
Spouses of personal injury victims may be able to sue for loss of consortium.
How much money can I get?
It depends on your case. The more serious and long-lasting your spouse’s injury is expected to be, the larger the award.
Loss of consortium is considered “non-economic” damages because it is subjective and difficult to calculate. For this reason, it is not unusual for loss of consortium damages to far exceed the “economic” damages your spouse receives for doctor’s bills and lost earning capacity, which are easy to calculate.
What if my spouse’s injury is permanent?
If your spouse is permanently injured, your loss of consortium damages will be calculated to extend until the end of the life of whichever spouse has the shorter life expectancy. For this purpose, life expectancy is measured as it was just prior to your spouse’s injury.
That way you are not penalized if the injury shortened your spouse’s life expectancy. For instance, a Los Angeles jury awarded the wife of a mesothelioma victim $4 million for past and future loss of consortium, even though mesothelioma victims have a short life expectancy.1
How do I prove loss of consortium?
California Civil Jury Instruction “CACI” 3920 spells out the elements of loss of consortium. To win a lawsuit and recover these damages, you must prove by a preponderance of the evidence the following four elements:
- Your spouse or partner was injured by someone else’s negligence, recklessness, defective product, or other wrongful act;
- You and the injured person were lawfully married or had a valid registered domestic partnership at the time of the injury;
- You suffered the loss of your spouse’s or partner’s consortium; and
- Such loss resulted from the defendant’s wrongful act.2
How much do I have to reveal?
Proving that your spouse’s injury negatively affected your marriage is the most uncomfortable part of a loss of consortium case, especially if loss of sex is alleged. Often you do have to get very personal about your spouse’s inabilities or changes in behavior.
However, the vast majority of these cases settle out of court without you having to testify. Though if you do, our caring California injury attorneys know how to present your losses to the jury in a way that will maximize damages while minimizing the discomfort you experience on the witness stand.
Loss of consortium claims are open only to spouses or registered domestic partners.
What if my spouse was injured before marriage?
If your spouse was injured before you were married or registered as domestic partners, you will usually not have a loss of consortium case in California. An exception is where the injury was not discovered or discoverable until after your union, even though the wrongful conduct may have preceded it.3
Example: Lou is a 50-year old construction worker when he and Tom become registered domestic partners. A few years later, Lou is diagnosed with pleural mesothelioma. Even though Lou’s asbestos exposure occurred largely before the union, his symptoms did not. The loss of consortium begins only when Lou’s symptoms start and Tom loses his consortium with Lou.
How will the defendant fight back?
Even if the defendant admits they committed a wrongful act, they may try to argue that it did not cause your loss of consortium. For instance, we have seen cases where defendants dug up allegations of an extramarital affair that they claimed actually caused your loss of consortium.
Our California injury lawyers can help you overcome a defendant’s challenges and connect the dots between their wrongful act and your losses.
Does my spouse have to sue for their injuries before I can sue for loss of consortium?
No. In California, loss of consortium claim is an independent tort that does not depend on whether your injured spouse proves their injury in court.4
However, if your injured spouse has lost a court case or agreed that another party is not liable, you cannot sue for loss of consortium.
Example: Winnie is mauled by a vicious dog while she is out for her morning jog. As a result of the dog bite injury, Winnie suffers facial disfigurement, a mangled hand, and significant pain and suffering. She sues the dog’s owner but loses her case. Since the issue of liability has already been adjudicated in the dog owner’s favor, Winnie’s husband cannot sue for loss of consortium.
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Loss of Consortium: Should California Protect Cohabitants Relational Interest – Southern Carolina Law Review.
- Loss of Consortium: Paradise Lost, Paradise Regained – Cumberland Law Review.
- Loss of Consortium: A Derivative Injury Giving Rise to a Separate Cause of Action – Fordham Law Review.
- Like Family: Rights of Nonmarried Cohabitational Partners in Loss of Consortium Actions – Boston College Law Review.
- The Wife’s Action for Loss of Consortium – Progress or No – St. Louis University Law Journal.
Legal References:
- Truhitte v. French Hospital (1982) 128 Cal.App.3d 332. LaMonica et al. v. Colgate-Palmolive Co. et al., Los Angeles Superior Court case number JCCP4674/BC604809.
- Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382. California Civil Jury Instructions (CACI) 3920. California Family Code 297.5 gives registered domestic partners the same legal rights and remedies as spouses. Hahn v. Mirda (2007) 147 Cal.App.4th 740; Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921. California Civil Code 1431.2 (b)(2). CACI 3920, note 2.
- Leonard v. John Crane, Inc. (2012) 206 Cal.App.4th 1274.
- Brumley v. FDCC California, Inc. (2007) 156 Cal.App.4th 312.