If your spouse has been seriously injured in an accident and is facing an extended period of recovery or is permanently incapacitated, you have lost so much more than his or her income. You have also lost a partner, a companion, a friend. Your intimacy may be affected, and you may be taking on more and more of the everyday duties you used to share, such as taking care of the house and children. Your stress level is rising to a breaking point. In terms of the law, you are experiencing a “loss of consortium,” and may have a case for a loss of consortium claim.
Due to your spouse’s injury, you have been deprived of the security, the support, and many other intangible qualities that you were previously afforded by your marriage. The law allows you to sue for such a loss, provided that your lawyer can make a convincing argument that your loss is legitimate and significant.
An Example of a Loss of Consortium Claim
A husband is driving home from work when he is in an accident that is caused by a driver who is texting. He has serious injuries, ultimately loses a leg, and will not only be out of work for at least a year while he recovers, but he will have to find a new job that does not require the use of both legs.
He and his wife have 3 young children. Before the accident, he contributed to the household duties and was active in bringing the children to school and to their activities. Now that he is unable to drive, the family has had to hire a nanny.
Prior to the accident, the couple had an active social life, spent quality family time together, had sexual relations, and were available to each other for emotional support. But now, the wife spends all of her free time taking care of her incapacitated husband. The accident has left her stressed and completely strapped for time; her husband is now more of a patient to her than a partner.
How to Recover Damages When You’ve Experienced Loss of Consortium
In the above example, the wife must provide evidence of the state of her relationship with her husband before the accident. In considering how much in damages, if any, will be awarded to compensate for her loss of consortium, the court would consider:
- The strength of the marriage as it existed before the marriage. Was the couple happily married, or were they on the brink of separating?
- Was the couple on intimate terms with one another?
- What was the division of labor between the spouses?
- What is the life expectancy of both?
In other words, the spouse that is suing for loss of consortium needs to prove that the relationship was in a good state and was actually a source of stability and emotional support, and that these were lost due to the accident. Evidence may include the uninjured spouse’s testimony and testimony of other family members and friends about the nature of the relationship prior to the accident and how it has changed since.
Pennsylvania law stipulates that the uninjured spouse is due compensation for the loss of all of the services and companionship of the injured spouse. You will have two years to file a loss of consortium claim before the statute of limitations runs out.
Before You Settle…
Technically speaking, a loss of consortium claim is a “derivative” claim. In other words, you were not directly injured but were deprived of the benefits of your relationship indirectly, due to your spouse’s injury. The claim is dependent upon the legal entity or “legal fiction” of the marriage and therefore could not stand on its own. Thus, it is subject to the limits of the policy that protects the injured spouse.
If the defendant’s insurance policy pays a maximum of $200,000 in compensation for the injured spouse’s injuries, there will be a maximum of $50,000 available for the loss of consortium claim if the injured spouse opts to settle for $150,000. If the insurance company offers $25,000 to the spouse as compensation for loss of consortium instead of the full 50k, he or she may still pursue a separate claim for loss of consortium. HOWEVER, the injured spouse’s settlement agreement must acknowledge that the $150,000 does not cover loss of consortium; otherwise, the entire case will be considered to have been settled, and the uninjured spouse will lose his or her right to sue.
Pennsylvania Loss of Consortium Lawyers
A loss of consortium claim is a delicate matter. You need an attorney who knows how to navigate a case which will by definition involve the matters of your personal life with your spouse. This is not a case that you should leave to an attorney who is inexperienced. Donaghue & Labrum combines compassion with decades of experience fighting for victims and their families, and we know how to strike the right balance, whether in negotiations with other attorneys or in front of a jury that will make decisions vital to your family’s future.
We serve clients in Philadelphia, Delaware County, Chester County, and surrounding areas from our convenient offices in Media and West Chester. Call us today for a free consultation. We are ready to fight for your family!