In personal injury cases in Florida, in addition to those damages available to you, the law allows your spouse a claim, too. It is called a claim for “loss of consortium.” A legal marriage is required; common law relationships are not sufficient. It is a derivative claim, meaning it is pursued along with, and as a part of, your personal injury claim.
Consortium generally refers to the services, comfort, society and attentions of a spouse. This includes more than just the marital sexual relationship, but also the companionship and fellowship of a husband and wife to each other. The burden of proof is on the claiming spouse and may be claimed for both past and future losses. Examples include: a spouse taking on more housework or childcare responsibilities, which the injured spouse can no longer perform; a spouse taking time off from work to stay home and care for the physical needs of the injured spouse; the loss of physical activities that the couple used to enjoy but can no longer enjoy together because of the injuries- such as dancing, roller skating, traveling, movies in a theater, etc.; and, the spouse’s injuries causing a negative impact on the frequency or duration of marital intimacy.
The value of a loss of consortium claim is determined as a matter of fact by the jury. Historically, Florida juries do not make large awards. One theory is that jurors believe that the marriage vow “for better or for worse, in sickness and in health” plays in, and taking care of an injured spouse is just part of being married. However, by fully developing and presenting trial evidence of the thriving marital relationship prior to the injury (through deposition testimony, before and after witnesses, photographs and videos, and expert testimony) and then presenting evidence of a substantial change for the worse after the accident, an award of damages may be substantial.
Thursday, February 3, 2011