Imagine that your spouse was seriously injured in an accident. You might suffer emotional losses due to their injuries. They may not be able to contribute to the daily chores in the house. You might not be able to enjoy the same hobbies and passions with them as before their injury. This is what a “loss of consortium” claim is all about.
Exactly What is “Loss of Consortium”?
In Kentucky, loss of consortium means that your spouse’s injury deprived you of your spouse’s:
- Companionship, and
- Conjugal relationship.
The claimant’s spouse must have suffered a physical injury, and the loss of consortium must have been actually caused by this physical injury. The term “conjugal relationship” definitely includes sexual relations.
Asserting a “Loss of Consortium” Claim
Only the spouse of an injured victim can file a loss of consortium claim. Moreover, a third party must have physically injured your spouse through negligence, gross negligence, or intentional misconduct. Your spouse must have a personal injury claim to support your loss of consortium claim.
Furthermore, the injury must be serious enough to justify a loss of consortium claim. If your spouse loses their personal injury claim, you will lose your loss of consortium claim. Even if your spouse wins their personal injury claim, you won’t necessarily win your loss of consortium claim.
How Much is “Consortium” Worth?
The measure of damages is the amount of “consortium” you lost because of the defendant’s misconduct (and the resulting accident). If your spouse’s injuries are permanent or long-term, the court will also consider your age, your partner’s age, the likelihood that your spouse will eventually recover, and your remaining life expectancies.
After all, the younger you or your spouse is (depending on who would have died first), the longer you would have had to enjoy the consortium that you lost because of the accident.
Proving the Value of a Loss of Consortium Claim
Proving the value of a loss of consortium claim can be difficult because it is based on intangible factors such as loss of intimacy. It can also be highly uncomfortable because you can be almost certain that the opposing party’s lawyer will ask you questions designed to embarrass you.
Be prepared for questions such as the ones listed below, especially in a pretrial deposition:
- How often did you and your spouse have sex before the accident. How often after the accident?
- Can your spouse still perform sexually?
- How satisfied are you right now with the sexual relations between you and your spouse?
- How often did you and your spouse argue before and after the accident? What did you argue about?
- How often do you argue with your spouse now? What do you argue about?
- Have you ever had an extramarital affair? Have you ever suspected that your spouse had an affair?
There are many other potentially uncomfortable questions that the opposing party may ask you. These questions are meant to determine the level of intimacy you have with your spouse and the quality of your relationship. There are other potentially embarrassing questions that your own attorney will have to ask you to establish your claim.
You might need an expert to confirm some of your claims. You might need a psychologist or a psychiatrist to testify concerning your emotional distress claim. You might need a physician to testify concerning your spouse’s sexual function or ability to communicate.
Insurance Company Policy Payment Limitations
If you are seeking compensation from an insurance company (whether your own or the at-fault party’s), you need to read the policy carefully. Every insurance policy has a maximum payout. After all, insurance companies would all go bankrupt if they didn’t limit their own liability.
What you need to look at in a loss of consortium claim is the insurance company’s maximum payout per “person” and per “incident..”
Take a car accident claim, for example. Kentucky requires its motorists to purchase insurance with liability limits that top out at no less than $25,000 per person and $50,000 per incident. Suppose your husband suffered $120,000 in damages in a catastrophic car accident. That amount is far more than the maximum coverage limit per person or per accident. This means that any amount you get for loss of consortium will come out of your spouse’s damages.
Parties With Abundant Financial Resources
If you suffer a catastrophic injury coupled with a loss of consortium claim, you might have big problems if the defendant cannot afford to pay the entirety of your two claims. Certain parties, however, have financial resources so abundant (in terms of insurance, business, or personal resources) that you can almost certainly obtain the full amount of your claim.
These parties include:
- Commercial truck drivers (because they are well-insured);
- Uber/Lyft drivers (because they are well-insured);
- DUI offenders, if you can use Kentucky’s dram shop law to hold a bar or nightclub liable for their intoxication;
- Large businesses (a department store in a slip and fall accident, for example); and
- Wealthy individuals.
Contact a Kentucky Personal Injury Lawyer for Help
The average person can handle certain small personal injury claims on their own. Because of the nature of a loss of consortium claim, however, you are almost certainly going to need a lawyer to win. If your claim is sizable, you need to hire a lawyer to help you. Contact Minner VInes Moncus Injury Lawyers by calling (859) 550-2900 or by contacting us online. We have won a total of over a billion dollars for our clients over the years.