When you are injured after an accident as the result of someone else’s negligence, you might have a claim for damages. Usually we think of these types of money damages in terms of medical bills, lost wages, and future medical bills or loss of earning capacity. What you may not know, is that someone very close to you may also have a separate claim for monetary damages because of your accident. That person, who suffers because you suffer, is your spouse and that claim is referred to as a claim for “loss of consortium.” In Gates v. Foley, the Florida Supreme Court defined “consortium” as the companionship and fellowship of husband and wife. The Court noted that a claim for loss of consortium is the right of each spouse to the company, cooperation, and aid of the other—including the sexual relationship, affection, solace, comfort, companionship, conjugal life, fellowship, society, and assistance necessary to a successful marriage. 247 So. 2d 40 (1971).
Under Florida law, a deprived spouse may recover damages for loss of consortium based on a variety of injuries suffered by the impaired spouse. A “deprived spouse” in this instance is used to mean the spouse who seeks damages and the term “impaired spouse” is used to refer to the spouse whose injury is the basis for the loss of consortium claim. The injury may be physical in nature, such as those that involve major trauma or are the result of an automobile accident, or even a permanent disability. While the injury suffered by the impaired spouse need not be permanent, the injury suffered must not be so insubstantial as to fail to warrant recovery for damages. For example, courts in Florida have found no recovery for loss of consortium when the impaired spouse suffered no injuries aside from bruises and shock that did not require medical attention.
While a claim for loss of consortium does not include the support or earnings that an impaired spouse may recover on their own from the at fault party, it does include the right to recover for services that the impaired spouse would usually perform in the household—including raising and caring for minor children. So what do you need to prove in order to recover these types of losses as the spouse of an injured person? Under Florida law, the following four elements are required:
- there must have been a valid and lawful marriage between you (as the plaintiff in the claim for loss of consortium) and the person injured (the impaired spouse). This means that if the marriage occurs after the injury, there is no right to recover
- there must be an injury to the impaired spouse tortuously caused by the defendant. Remember the part above about the injury—while it need not be permanent in nature, Florida courts have found that mere bruising that did not result in any need for treatment was insufficient to justify a loss of consortium claim
- The loss of consortium must be proximately caused by the defendant’s wrongful conduct. Stated differently, the loss of consortium must have been the natural result of the defendant’s wrongful conduct, and
- actual loss of consortium suffered by the plaintiff, i.e., loss of support, services, affection, etc.
Significantly, a deprived spouse’s claim for loss of consortium is derivative of the impaired spouse’s claim in tort against the at fault defendant. This means that you cannot recover for loss of consortium against a defendant unless your spouse also had a claim for the original wrongful conduct that injured the impaired spouse. However, your claim as the deprived spouse is separate and distinct from that of your spouse, and therefore even if your spouse settles his/her claim with the at fault party, you still have all your rights under Florida law to pursue your claim for loss of consortium against the defendant.
To recover on a loss of consortium claim, it is important that your spouse is successfully represented by a personal injury attorney with knowledge and understanding of these areas of the law. If you’ve been injured as the result of someone else’s negligence and your spouse has suffered as a consequence, we urge you to contact the attorneys at Dolman Law Group and learn more about your rights under Florida law for loss of consortium. We are available for a free case evaluation by calling 727-451-6900.