It’s February and love is in the air. I pause to think of the many people who feel loss, rather than love. Many are suffering a loss of companionship with their spouses and others, the loss of their child due to injury or wrongful death. A frequent phrase in the marital vows is…” through sickness and in health until death do us part”. Those words and conditions are tested in a myriad of ways be it the natural occurrences of Covid-19, heart attack, cancer, amputation, muscular, spinal, or brain injury. When life-changing events result in the loss of life, loss of health, loss of joy, and inability to perform activities of daily living, it affects the individual and those close to them. When a spouse or parent experiences such egregious loss due to someone else’s negligence, they may advance a legal cause of action called “loss of consortium”.
The carelessness which causes physical injuries often packs an emotional punch for both the victim and the family. Loss of consortium is non-economic damage. It is measured by the severity of the injuries suffered by the injured person and actual changes endured by the non-injured spouse. The burden proof of the loss is on the person claiming a loss. The aggrieved individual must be able to prove by comparison the type and depth of relationship they once enjoyed versus the changes that have occurred since the injury or death. The consortium claim is inextricably intertwined with the personal injury or wrongful death claim of the injured.
Consortium claims can be tricky. It should only be encouraged when there is a definite change in the relationship due to the injury or death. Some argue that a spouse should not receive compensation for his/her loss of companionship.
Florida law recognizes the loss of consortium as a separate cause of action belonging to the spouse of the injured married[1] partner because the illness, injury, or death was not of natural causes but rather due to negligence of another. Impeding the “companionship and fellowship of husband and wife and the right of each to the company, assistance, cooperation, society and aid of the other in every conjugal relation” defines consortium.[2] The consortium is more than a sexual relationship and includes “affection, solace, comfort, companionship, conjugal life, fellowship, society and assistance so necessary to a successful marriage”.[3]
DIVERSITY MATTERS IN CONSORTIUM CLAIMS:
We must not forget there exists age, cultural, and racial differences within marriages. Example: The McKays were married for over 50 years and enjoyed separation of duties: his outside and hers inside. While in their 70s, they were injured in a bus collision, which resulted in challenges tending to many of their normal activities. Assisting the other in bathing and toilet hygiene were matters that neither had ever experienced in more than 50 years of marriage. On the other hand, The Cabrerras were young newlyweds when the husband was injured in a crash. Their plan of starting a family was forever changed by the collision. Spousal consortium claims differ. However, the spousal loss of companionship and society needs to be understandable, extra-ordinary, and provable.
Discussing the disruption of the relationship is challenging as it mimics the sounds of complaints and lack of love by the non-injured person. The uninjured spouse is often pleading for help to cope with the monumental changes in their lives. Filing a consortium can feel like a colossal invasion of privacy as the insurance company lawyers will often pry as to the specific changes including intimacies which may be hard to qualify, but the quality of the relationship needs to be explained for a judge or jury to understand the seriousness of the loss.
CHILD DEATH CONSORTIUM
The death of a child is an emotional upheaval. A filial consortium claim permits a parent to recover for loss of consortium arising from the injury or wrongful death of a child, including an adult child.[4] Florida law does afford compensation for loss of companionship and comfort as well pain and suffering to parents who are forced to endure a lifetime of loss because of the negligence of another. A parental consortium claim permits a child, including an adult child, to recover for the loss of consortium arising from the wrongful death of a parent. Id.[5]
DAMAGES:
When a person is suffering from an illness that is life-altering, the injured person’s pains may be communicated as frustration, anger, irritability, withdrawal, reclusive behavior, or even nightmares. Often, the spouse silently endures these emotional changes. Moreover, a spouse may be required to take time from work to care for the needs of the injured spouse or add jobs to make ends meet because the injured person is unable to work. The impact on normal activities once enjoyed including travel, sexual relations, and family traditions are all important to the consortium bond.
Having a professional with whom to communicate is often helpful to navigate through the physical injuries and the emotional whirlwind that is suffered. Understanding the importance and nature of this claim comes into full focus during this month of Cupid’s Bow. I hope that all can give and receive the most powerful force to each other…love.
As an injury lawyer, my team and I work hard to help rebuild the lives of those seriously injured or the lives of families who have suffered the loss of a loved one. If you or a loved one has been seriously injured or died due to someone else’s wrongdoing, contact me at Attorney Salesia Smith-Gordon 561.655.9279. Learn more at www.SmithGordonlaw.com
1. [1] Marriage
2. [2]Liberty Mut. Ins. Co. v. Wolfson, 299 So. 3d 28, 2020 Fla. App. LEXIS 9045, 45 Fla. L. Weekly D 1508, 2020 WL 3443813
3. [3]Gates v. Foley, 247 So. 2d 40, 1971 Fla. LEXIS 3755
4. [4]Cruz v. Broward Cty. Sch. Bd., 800 So. 2d 213, 218 (Fla. 2001) (Shaw, J., dissenting).
5. [5]Id.