Marital Woes: Can You File a Claim for Loss of Consortium?

With more than 815,000 lawsuits filed 2018, it is safe to say New Jersey’s legal system is robust. 503,600 of these cases were civil, and a large number of those were for personal injuries. Loss of consortium claims, however, made up only a small percentage of the total number. That is likely because many people are scratching their heads and asking, “What is it?” After learning what it is, they then ask, “Can you sue for it?” You are in luck because the experienced team at Rossetti & DeVoto, PC is here today to answer these questions and help you understand your rights as a New Jersey resident. 

What is Loss of Consortium?

Although it may sound like something from corporate law, loss of consortium is actually related to personal injury cases. So, what is it actually? It is a type of claim filed against the defendant in personal injury cases. If one spouse has been seriously injured, then the non-injured spouse may be entitled to consortium damages. This is based on the concept that the injured spouse can no longer provide marital duties to the non-injured spouse. And/or that the non-injured spouse has to endure additional obligations that did not exist before the injury. New Jersey law defines it as a “loss of comfort, society, and marital relations.

Loss of consortium claims can be caused by any injury to a spouse, but often, juries only award loss of consortium damages in cases of serious personal injuries including paralysis, amputation, significant scarring, burns, and other injuries resulting in constant pain.  

Loss of consortium is available to any type of claim, such as car or truck accidents, medical malpractice, and many other types of negligence case, so long as one spouse suffers physical or emotional injuries and the other spouse’s life is adversely affected. An oversimplified example would be a wife who has to care for a severely injured husband by feeding him, bathing him, transporting him. In addition to doing his household jobs like lawn maintenance. And, not being able to take long walks, go on vacations and foregoing intimate marital relations. 

Can You Sue for Loss of Consortium?

Before answering the question, “can you sue for it,” it is important to make a number of distinctions:

• The legally married partner of a seriously injured individual is the only one eligible for the loss of consortium claims. In New Jersey, common-law marriages, parenting children, and engagements do not qualify as a “spouse” for loss of consortium damages.

• New Jersey case law also has a long history of requiring that the couple be legally married at the time of the alleged negligence that is the subject of the loss of consortium claim.

• Any personal injury case involving a spouse can file for this kind of a lawsuit. However, jury awards on this claim are mostly reserved for the most serious injuries to a spouse.

• Loss of consortium claims are derivative claims. What this means that the physically or emotionally injured spouse must first file a negligence lawsuit before the non-physically injured spouse can file for such claim. In other words, the consortium claim attaches to the injury claim. If the spouse does not bring an injury claim, then they cannot bring this kind of claim either. Likewise, unless the physically/emotionally injured spouse proves and wins their negligence claim, the jury cannot compensate for the loss of consortium claim by the non-injured spouse.

• Many lawyers believe that arguing for loss of consortium in some cases can adversely affect the outcome of the entire case. Especially if a jury believes that the non-injured spouse is asking for damages; in cases where it does not appear that their injured spouse’s physical or emotional injury has significantly affected them. Due to this fact, we highly recommend consulting with a skilled New Jersey personal injury attorney before filing suit.

Let Rossetti and DeVoto, PC Help with Your Loss of Consortium Claims

So, can you sue for loss of consortium? Yes, but only if your case is within the above boundaries. Call Rossetti and DeVoto, PC today at (844) 263-6260 for a free case evaluation. Our team of attorneys and legal professionals will help you determine if you have a loss of consortium claim. And, they will work with you throughout the entire process to get the compensation you deserve.