When a loved one dies because of an accident, their close relatives can make a claim for loss of consortium. “Loss of consortium” is the emotional harm they suffer. This claim is attached to the victim's personal injury lawsuit, not made on its own as a separate suit. 

Loss of Consortium

In California, loss of consortium is the legal term describing the emotional harm the family members or loved ones of an accident victim experience. Other states describe loss of consortium in different terms, such as “loss of companionship,” “loss of services,” or “lost intimacy.”

The point of this claim is to compensate the victim's loved ones for their emotional suffering, which was a direct result of the accident. 

Emotional Harm in Loss of Consortium

The emotional suffering that a victim's family goes through can look like any of the following examples:

• Sorrow from providing care for the victim,
• Losing marital benefits,
• Making lifestyle changes to accommodate the victim's injuries,
• Changing living arrangements,
• Being unable to ask the victim for advice, and
• The agony of seeing one's loved one hurt and suffering.

Loss of Consortium Claims are Unlike Monetary Value Damages

With medical bills, the monetary value of damages is very easy to understand and lay out for the paying party. But loss of consortium is harder to quantify. The close relatives of a victim deserve to be compensated for their hardship. Again, this type of lawsuit will attach to the personal injury that the victim files. Loss of consortium tends to fall into cases involving car accidents, medical malpractice, slip and fall, and wrongful death cases. 

Who Can Make a Loss of Consortium Claim?

Generally, the victim's loved ones will make a loss of consortium claim. Because this type of claim is linked to a larger personal injury lawsuit, it will fail if the personal injury suit fails. They are inextricably linked in this way. 

In some states, like in California, claims for loss of consortium can only be made by spouses or intimate partners. Other states have abandoned this limitation because it seems to only focus on the sexual relationship. But it bars unmarried cohabitants or even engaged couples from receiving compensation for their loss. Other states widen the net to include separated spouses and the victim's children to bring a loss of consortium case. Most states bar the victim's stepparents or siblings from making such a claim.

Do Shared Fault Rules Affect Loss of Consortium Damages?

All states have shared fault rules – meaning both parties are at fault for an accident. Comparative negligence allows the family of victims to recover damages, less their percentage of responsibility. Other states will bar the family members from recovering anything if they are half at fault for the accident. Additionally, in contributory negligence states, victims are barred from getting any compensation if they contributed to the accident even slightly. 

Loss of consortium claims, as explained above, are linked to the personal injury lawsuit, which also means their share can be reduced because of their loved one's responsibility in the accident. 

What are the California Laws on Loss of Consortium

In California, only spouses and domestic partners can receive loss consortium compensation. To recover this payment, the spouse must show:

• There was a lawful marriage in place,
• The victim suffered an injury in the accident,
• The scope of the unharmed spouse's loss of consortium, and
• The defendant's actions were the proximate cause of the loss of consortium. 

Further, the couple must be married at the time of the injury, even if not at the time of the accident. For instance, if the victim is hurt before their marriage but only discovers the injury after the marriage, their spouse can still claim loss of consortium.

California cannot limit what the spouse has suffered. The court can award prospective damages if the spouse's loss of consortium is sufficient and certain to occur. Prospective damages are linked to the victim and spouse's life expectancy, whichever is shorter. And just like we explained above, loss of consortium and the personal injury suit are linked. If the personal injury lawsuit fails, so does the loss of consortium claim. 

A seasoned attorney can advise you regarding personal injury and loss of consortium claims.