Posted On 02.26.18 by in Blog
If your loved one was severely injured or killed in a personal injury or wrongful death case, you may be eligible to file a loss of consortium claim to compensate for your loss. Of course, there is no way that money can truly make up for the loss of someone you love, but the added compensation can help to make your life just a bit easier while you are grieving.
These types of cases have many intricacies that determine who can file a claim and how much they might be eligible to receive in compensation. Here’s an overview of how the process works so you can decide if filing a loss of consortium claim is the right course of action for you.
A loss of consortium claim helps you to recover damages after the loss of your loved one in a personal injury or wrongful death case. You’ll need to prove that the injury or death was the result of the negligent, intentional or wrongful acts of the defendant in the case. Most states have statutes that allow for this type of claim. The amount that you can claim in damages will depend on the extent of the disruption to your life as a result of the loss of your loved one.
In order to be eligible for loss of consortium, your loved one needs to have died or suffered a severe injury that will drastically affect your lives together. This includes injuries that result in paralysis, dismemberment, coma, loss of ability to care for oneself and other similar consequences. More minor injuries, like broken arms, burns and scars likely would not qualify, unless they would have a major impact on your quality of life due to the ongoing care needs of your loved one.
The concept behind loss of consortium is that the deceased or injured person will no longer be able to provide the same love, companionship and sexual satisfaction as they could before the incident. This also applies to loss of social status and reputation. Finally, physical pain and suffering, emotional distress, mental anguish, humiliation and embarrassment are also included in this category.
These are what are known as general damages, meaning that they are not financial in nature. Any money you are awarded in the case will be a rough substitute for your loss, as these types of damages are incredibly difficult to quantify. This task will be left to the judge or jury in your case. You may also choose to have an expert in this area work on your case as a consultant or expert witness in order to guide the jury on what is appropriate for a case like yours. This can help maximize the amount of money you can claim.
The specific state you live in will determine who is allowed to file this type of claim. When loss of consortium claims were first introduced to the legal landscape, only spouses were able to present claims. However, changes in society over the years have led many states to amend their policies. Nowadays, many states permit domestic partners, same-sex spouses, children and even parents to open loss of consortium lawsuits. An attorney with experience in this area can advise you of the specific regulations in your area.
For spouses and domestic partners, the relationship typically needs to be in good standing. If you and your spouse were in the process of getting divorced when the incident took place, you will likely not be able to claim as much as if you were still married, if anything at all. Any complications in your marriage, like infidelity or deception, will likely come to light during the trial and can negatively impact the amount of money you receive.
Child and parent relationships are a bit trickier. In a case involving young children losing a parent, the loss of care and affection is easy to see. Adult children of the deceased or injured person will have to work a bit harder to prove their loss, showing that their relationship to the person has been irrevocably damaged following the incident.
For a parent who has lost a child, the complications are similar. If the child served as a caregiver for an elderly parent, the parent may qualify for a loss of consortium claim. If, on the other hand, the parent and child had been estranged prior to the incident, a claim would be unlikely to get approved, as there wasn’t a strong relationship to begin with.
You won’t be able to file a loss of consortium claim for an unlimited amount of money; the specific limitations you’ll face will depend on the specific laws in your area and the defendant’s insurance policy and assets.
Each state has its own specific legal requirements for loss of consortium claims that can determine how much compensation you might qualify for. For starters, you’ll need to prove that a valid relationship existed. In states that only allow married couples to file loss of consortium claims, you’ll need to prove your marriage, typically by showing your marriage certificate, tax returns or other legal documents that verify that you are, in fact, married. Separation or divorce can reduce the amount you are eligible to claim.
In states that allow same-sex couples and domestic partners to claim loss of consortium, you’ll need to work a bit harder to prove your relationship. This could include things like showing joint bank accounts and bills, testimonies from friends and family members, photographic evidence showing the length of your relationship and other similar actions. These types of relationships may not be able to claim the same amount as married couples do, and shorter relationships will likely result in smaller claims as well.
If you are making a claim against the defendant’s insurance policy, you’ll be limited by the specific details of that policy. For most insurance policies, there is a limitation on the amount that can be claimed for a single injury. This cap represents the maximum amount that the insurance company will pay out for the accident. You won’t be able to claim more than the insurance policy allows. Your loss of consortium attorney can help you evaluate the policy to determine its limitations.
If the defendant does not have insurance, or if their policy doesn’t cover an amount that is comparable to the damages you are claiming in your loss of consortium case, you may be eligible to claim further compensation from the defendant. However, this is typically only possible if the defendant is wealthy or has significant assets. You won’t be able to claim so much as to cause financial hardship to the defendant, though, so this route is only possible in select instances.
When you file a loss of consortium claim, you open yourself up to intense personal scrutiny, so you need to be prepared to have all of your personal affairs aired in a public setting. Unless you are able to have the records sealed, which is only possible in extremely rare cases, all of the court proceedings will become public record.
Throughout the trial process, the defense attorney will examine the intimate and private details of your relationship in order to verify that a qualifying relationship did, in fact, exist. This will include intense questioning on topics that may be difficult for you to discuss publicly.
If your relationship experienced any complications, like infidelity, abuse or criminal charges, you’ll have to discuss these issues extensively. You’ll be trying to prove that your relationship was still strong, despite the hardships. At the same time, the defense attorney will be trying to weaken your claim by showing that the relationship might not have been as stable as you say it was.
These types of discussions can be incredibly emotional, particularly when you are already in mourning for your loss. If you choose to file a loss of consortium claim, you need to be mentally prepared for these lines of questioning.
Loss of consortium claims can be incredibly challenging to prove, so you’ll want to have an attorney who is experienced in this area advocating on your behalf. In choosing your lawyer, ask about similar cases they have argued in the past to ensure that they have experience with your specific type of claim. For example, a particular attorney may have experience with spousal claims but not parent or child claims.
You’ll be discussing highly personal information with your attorney, so it is important to find someone you are comfortable talking to. During your initial consultation with a prospective lawyer, think about how you feel working with this person. You’ll be working very closely together for the duration of your trial, so you need to choose wisely.
Here at Ingerman & Horwitz, we deal with a variety of accident and personal injury claims, including loss of consortium. We will gladly assist you with your loss of consortium claim in Maryland or West Virginia. We recognize that this is a difficult time for you in the aftermath of the loss of your loved one, so our attorneys will always work with you in a caring and compassionate manner.
Our process begins with a free initial consultation to go over the details of your case. Your attorney will help you evaluate your options and determine if you have a legitimate claim. While we cannot guarantee a particular dollar value for your settlement, we can promise that we will do everything in our power to achieve the most favorable results possible.
We welcome you to get in touch with us to learn more about our loss of consortium services and to schedule your consultation. We will be happy to answer any questions you have about our law firm, attorneys and experience. We can answer questions about loss of consortium claims and the legal process as well. Call us today to set up an appointment to get your case moving forward.
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