Loss of consortium is probably most often thought of in relation to sexual activity between spouses, but there are actually several forms of the claim. Often it does refer to decreased or limited sexual activity, or total loss of that activity, as in the case of wrongful death. But, a loss of consortium claim could also arise from severe disability, serious strain on a relationship, diminished care, loss of companionship, affection or attention and it could be the claim of child, a parent or a sibling.
For example, if Jeff is seriously injured by another’s negligence and is unable to help take care of his three children and do household chores as he normally does when he gets home from work, there is a loss of care, a loss of companionship, and a strain on the marriage as his spouse, Susan, must do everything she normally had help doing. She could submit a claim for loss of consortium.
In another case, Dan was killed in a car accident by a drunk driver. His eight-year-old daughter, Amy, no longer has the care and companionship of her father. She no longer gets attention or affection from him and has many years to experience her loss. Amy has a loss of consortium claim as part of a wrongful death action involving her Dad.
Loss of consortium is a “derivative” claim which means it stems from direct or special injury to the plaintiff, or in the case of wrongful death, is an element of damage arising out of the death. Thus, it is not an actual injury in itself, but arises out of another person’s injury. If that person’s claim fails, the loss of consortium claim will also fail. The personally injured party should not settle their claim before the loss of consortium claim is made.
The value of the claim is part of a single personal injury settlement. There is no separate trial. If there is a $50,000 bodily injury policy limit and the injured person receives $40,000 in damages, the person who files for loss of consortium cannot receive more than $10,000. The names of both parties will be on one check for $50,000, if that is the settlement offer. Loss of consortium may be claimed in negligence or intentional tort cases.
This article was written by Attorney James W. Slater of the Akron, Ohio law firm of Slater & Zurz LLP.
** This blog is written by a private citizen who has no connection to the Akron Beacon Journal or Ohio.com. In no way does what they write reflect the opinion or views of the Akron Beacon Journal or Ohio.com. We do not edit or censor these blogs. The views and opinions belong to the author of this blog. We invite you to comment on their postings.