The term “consort” was traditionally used to refer to a person’s spouse, more specifically a wife or a husband. The phrase “consort with” referred to associating with someone closely; as such, “loss of consortium” is a legal term referring to the loss of association or companionship with a person, generally a close partner or family member.
In a legal context, “loss of consortium” generally refers to the damage sustained to your relationship because of an injury to you or your spouse. Many attorneys define loss of consortium to be the loss and/or decrease of a sexual relationship. However, loss of consortium can also refer to other types of losses. These include the loss of:
- Companionship; and
- Affections of a loved one, whether or not there is a decrease and/or loss of a sexual relationship.
Loss of consortium is most commonly raised in cases such as:
- Car accident claims;
- Negligence claims; and
- Wrongful death cases.
A wrongful death action can be brought by a family member of a deceased victim against the person who caused their death. While the laws of each state vary in terms of which persons can bring the lawsuit, it is generally an immediate family member of the deceased who files the claim. This would include a spouse, or a parent. A wrongful death lawsuit may also be brought against businesses, government agencies, or other types of organizations.
Because wrongful death actions are considered to be civil matters, the standard of proof for these claims is generally lower than in criminal cases. What this means is that it is considerably easier to win a wrongful death lawsuit than it is to obtain a conviction in a criminal case.
However, wrongful death and criminal prosecutions are not mutually exclusive actions. A person may be sued for a wrongful death in a civil law court, and also may be prosecuted in a criminal law court. When both situations occur, a civil suit is generally filed after the criminal matter concludes.
Who Can Recover Damages For Loss Of Companionship And Consortium?
Loss of consortium claims can vary by state, as each state may have different personal injury laws. To reiterate, loss of consortium can apply to many different situations and types of relationships, not solely spouses. These can include:
- Parental Consortium: Some states have recognized the loss of a relationship between a child and their parent or parents as a loss of consortium. Meaning, a child may be able to sue for the loss of their parent’s care, companionship, and affections. This is because it can negatively affect the child’s development, welfare, and personality for the rest of their life.
- Some state laws only grant loss of consortium damages where the parent has died, while other states recognize consortium damages where the parent was severely harmed or injured.
- Some states allow loss of consortium damages to only minor children, while others grant consortium damages in suits by adult children as well.
- Unmarried Partners and Couples: Some jurisdictions may allow loss of consortium claims for those who are unmarried; however, these types of damages can be considerably difficult to obtain. You should consult with a lawyer who can educate you regarding whether you can receive loss of consortium damages for your partner in your specific state; and/or
- Grandparents: Some state laws recognize loss of consortium rights of grandparents to their grandchildren, but generally in limited circumstances.
When reviewing a loss of consortium claim, states consider multiple factors in order to prove the claim. These factors include, but may not be limited to:
- The overall stability of the marriage or relationship;
- How long the relationship has lasted;
- Each person’s individual life expectancy; and/or
- The projected loss of benefits, an example of which being how a person in a coma might be seen as a greater loss than a person who sustained a broken bone.
Individual life expectancy is an especially important factor when determining damages for loss of companionship and consortium. An example of this would be how if a person whose spouse died is relatively younger, they may have had a certain amount of years that they could expect to spend with their spouse or loved one. Alternatively, if the person whose spouse died is older or more advanced in years, they may have fewer years to expect to spend with their loved one.
Are There Any Limits On Damages For Loss Of Companionship And Consortium?
Because the type of injury and losses involved can be unique, damages for loss of consortium can differ dramatically from case to case. Generally speaking, loss of consortium is considered to be a type of non-economic damage. Other types of losses, such as hospital expenses, can be accurately calculated with some degree of precision. However, non-economic damages such as loss of consortium are somewhat more abstract, and as such may take into account other factors such as pain and suffering.
Because of this, there is no real general rule or formula used for calculating loss of consortium damages. Doing so will generally require the assistance of a lawyer, who can help determine the amount of damage appropriate for the case.
Additionally, it is important to note that some states may impose a cap or limit on non-economic damages, including loss of companionship and consortium. Such laws are subject to frequent change; as such, you should check with a legal professional such as an attorney regarding the status of the laws in your area. It is also important to note that ultimately, it is up to the judge who is presiding over the case to determine the actual dollar amount of the remedy.
Some states fear that juries will be tempted to award excessive damages when they hear an especially heart-wrenching story of loss of companionship and consortium. Because of this, many states impose limits on how much a person can recover for loss of consortium. An example of this would be how Wisconsin imposes a cap of $350,000 for the death of an adult, and $500,000 for the death of a minor. Another example of this would be how Arkansas imposes a cap of $500,000 for loss of consortium, and Maine caps loss of consortium damages at $400,000.
In some states in which there is a limit on non-economic damages, it is considered to be controversial to include loss of consortium into that figure. Because loss of companionship and consortium may not be specifically listed in statutes limiting non-economic damages, some states do not include the amount awarded for loss of consortium into the final figure for non-economic damages. What this means is that even if there is a cap on non-economic damages, you will not be prohibited from recovering for loss of consortium.
Additionally, states limit recovery for loss of consortium to an injury that occurred during the marriage. As such, same-sex couples may have a more difficult time recovering for loss of consortium in many states if their marriage is not recognized.
Do I Need A Lawyer For Help With Limits On Damages For Loss Of Companionship And Consortium?
If you are experiencing a loss of companionship or consortium, you should consult with a wrongful death attorney in your state.
Your personal injury lawyer can help you understand your legal rights and options according to your state’s specific laws, including whether any damage caps exist. Additionally, an attorney will also be able to represent you in court, as needed.