Defining the Legal Concept of Consortium Loss
Loss of Consortium is an action for damage type that arises out of an underlying negligence action. It is a common law cause of action where a spouse of an injured person can bring their own claim for damages as a result of an injury suffered by his/her spouse caused by a defendant’s tort. The cause of action is brought in a suit under federal maritime law or state common law. It is a viable cause of action under common law in the state of California. The negligence giving rise to the injury may be from a car crash, bus accident, truck collision, slip and fall, dog bit, just to name a few. Let's talk about the spousal relationship next.
Only a Spouse Can Maintain The Action
If your spouse was injured, then you are entitled to recover damages for his/her injury.However, spousal relationship - for the purposes of loss of consortium - must have been validly created under common law marriages. Cohabitants, regardless of how stable or significant the relationship may be, cannot maintain this action. Therefore, if you live with an injured person without legally being married to him/her, you are not entitled to recover for loss of consortium. Parents cannot recover loss of consortium for their child’s injury even though the child is still in their custody. Nonetheless, in the unfortunate cases where a child is abducted or enticed, a parent may recover damages for emotional distress from the parties causing it. Children may not recover damages for his/her parent’s injury.
Stating separate causes of action; joinder
The cause of action for loss of consortium should be thought of as a separate lawsuit against the defendant. Hence, it is pleaded separately. When bringing loss of consortium action, it is usually the case that the tortfeasor requires joinder at the same time as the tort claim. The purpose of a joinder prevents the possibility of duplicating recoveries.
Legal Time Limit to Bring Such Lawsuits
The cause of action for loss of consortium begins at the time of the original injury. Even if the extent of the injury is not known fully, the cause arises when the injuries are suffered by the injured person. Despite popular conception, a person does not need to be severely injured to support a loss of consortium claim. In fact, the loss does not need to be physical; it can be emotional or psychological.
Loss of Consortium Injury Damages
There are number of different types of injury damages recoverable under a loss of consortium lawsuit. They include but are not limited to, loss of love, companionship, affection, society, solace, and comfort; diminished sexual relations; diminished conjugal fellowship; interruption of future plans and planning; loss of moral support; diminished physical assistance in cooking, maintaining the home; and need to provide additional care to injured person
Some of the types that cannot be recovered in a lawsuit include but are not limited to: damages claimed by the injured person (loss of financial support and services to family); reasonable value of necessary and attendant services provided to injured person; and grief, distress, embarrassment over scars or disability.
Proving Injury Damages Utilizing Attorney Assistance
Just like any other time of injury damages, loss of consortium can be difficult to prove within the legal process. While some laypeople might get some small settlement offer from the insurance adjuster to "go away," most are offered nothing at all. Here is what you need to do to prove loss of consortium:
- Prepare for the deposition: discuss all elements of consortium. Make sure to include all details by which your life activities have been affected. Also, be prepared for a psychological evaluation.
- Have witnesses: the injured person, the claimant, family members, friends, co-workers can witness. The spouse, however, is the main witness in this action.
- Show impairment of the relationship: that is showing the differences between the spousal relationship before and after the injury. There must be proof and the effect should not be superficial or temporary.
This is where a personal injury damages attorney group can really help out. Proving injury damages utilizing attorney assistance can greatly increase the amount collected for the plaintiff. It also takes off the anxiety and stress associated with dealing with legalities. This way the damaged family can focus on recovery and get back to life as normal. If you are hurt and need a firm that has the passion and resources to fight on your side, contact The Napolin Law Firm of personal injury lawyers. Free consultations are available for injury victims and their families. Speak to an attorney today, call 909/325-6032.