When your domestic partner or spouse is hurt due to another person’s negligence, your life can change instantly. Along with your spouse’s claim for compensation, you are entitled to a loss of consortium damage. This damage aims to make you whole after losing comfort, companionship, sexual relations, love, affection, and moral support due to the injuries. Since placing a dollar value on these non-economic damages is hard, hiring a seasoned Orange County personal injury law firm is wise. The attorney can guide you throughout the case, offer practical advice, and work aggressively to ensure you obtain a full and fair settlement.
A Quick Overview of Loss of Consortium
Per California law, the legal definition of loss of consortium is specified as follows:
- Losing comfort, companionship, love, care, protection, assistance, moral support, affection, and society.
- Losing sexual enjoyment or ability to bear children.
It can also take the form of:
- The mental toll of seeing your spouse suffer.
- Doing household chores to take care of your spouse.
- Being unable to ask your spouse for guidance or advice.
- Changing your living arrangements or lifestyle to accommodate your spouse’s injuries.
Loss of companionship is non-economic damage. It is compensation awarded for intangible losses incurred due to the injury. You can be awarded other non-economic damages depending on the strength of your claim, including pain and suffering, emotional trauma, reputational damage, humiliation, loss of enjoyment of certain activities, or worsening of previous injuries.
The judge determines the fair amount you recover based on your case facts.
Typically, plaintiffs bring these cases alongside the injured party’s claim for injuries sustained due to a slip and fall, a traffic-related accident, or medical malpractice.
Compensatory damages for loss of companionship are not inclusive of the following:
- Losing the financial support your spouse offered before the injury.
- Any lost income experienced by relinquishing employment to look after your injured spouse.
- Personal care services to the victim, like nursing, that you provide or will offer to them.
- Household maintenance expenses now that your spouse is injured.
Permanent Injuries to Your Partner
When your partner’s injuries are long-lasting, damages can prolong until the expected end of life for either spouse, who has a lower life expectancy. Life expectancy is calculated as before your spouse was injured. In other words, you should not suffer because the injuries reduce your partner’s life expectancy.
Loss of Companionship Case Elements in California
For a successful claim of damages, you are required to prove four crucial facts, which are as follows:
- You are legally married or are in a registered domestic partnership with the injured party.
- Your partner or spouse suffered wrongful injuries.
- You suffered a loss of companionship.
- Your partner or spouse’s injuries caused your loss of consortium.
Here are definitions of critical legal phrases to help you understand the elements of this personal injury case.
A Legally Binding Marriage or Domestic Companionship
You must verify that your marriage was valid or that you had entered into a registered partnership with the victim before the injuries.
There are no justifiable grounds for a compensation case if your injury occurred before you were registered, married, or after your separation. However, an exemption is when injuries are discovered only after marriage, for a reasonable time after the wrongful act. In these civil cases, the relationship’s enjoyment is impacted immediately after your domestic partner or spouse realizes the injury or harm inflicted.
Please note that children in California do not receive compensation for loss of parental consortium, nor do parents of injured children.
Wrongful Injuries to Your Partner or Spouse
You must demonstrate that a person committed wrongful conduct against your domestic partner or spouse to qualify for these damages.
These acts are due to another party’s:
- Gross negligence.
- Intentional wrongful act.
- California's strict liability laws, like dog bite law or product liability law.
- Recklessness.
Proving You Experienced a Loss of Companionship
Proving compensatory damages can be challenging and uncomfortable.
While it involves the incurred losses, this factor of the civil lawsuit will mostly focus on how your partner’s injury has led to a change of behavior or inability.
Discussing how your partner’s behavioral change has impacted your marital relationship is uncomfortable, especially when there is an alleged loss of sex.
Your compassionate personal injury lawyer has the experience and expertise to address the losses with the jury or judge in a manner that will increase damages while reducing the hardships you experience during cross-examination and testifying.
Your Spouse’s Injuries Led to Loss of Consortium
Even though a defendant has committed wrongful conduct, you should verify that that act resulted in your partner losing companionship.
You are ineligible to claim loss of consortium damages in California if you lost companionship due to other reasons, like infidelity.
Our personal injury attorneys are qualified to assist you or your spouse in navigating the defendant’s issues and solving the puzzle between your losses and wrongful conduct.
Should Your Injured Spouse Take Legal Action for Their Injuries?
In California, damages are a separate tort, not dependent on your injured partner proving injuries in court. Nonetheless, if the victim loses a case or absolves another party of liability, you are barred from suing for damages.
Calculating Loss of Companionship Damages in California
According to California Jury Instruction (CACI) 3920, the burden of proof rests with the injured party’s spouse and their lawyer, and they should provide evidence establishing why and how much the plaintiff deserved compensation.
Calculating full compensation calls for careful and thorough deliberation of how a wrongful act affects the plaintiff’s relationship with their spouse. Due to the lack of an exact formula for measuring this damage in California, you should provide the court with as much evidence as possible to build a more compelling case.
Since loss of companionship can take on several forms, your evidence for damages can take on various forms. Perfect pieces of evidence to prove your loss of companionship include the following:
- Your spouse's injuries have caused a loss of mobility that impairs their ability to offer care, protection, and assistance.
- The injury to your spouse has left them with emotional anguish that affects their ability to provide comfort and companionship.
- The impact of the injury inflicted on your spouse prevents them from having sexual intimacy or making babies.
- The injury impacts your spouse’s urge to go out or capacity to offer moral support.
- Your spouse’s bodily and psychological injuries affected your emotional or physical relationship in other ways.
Damage calculations are individualized and evaluated based on case facts. The case details can include the following:
- Expert witnesses, like a family doctor or psychiatrist.
- Medical documents.
- Testimony from family members and friends.
- Video or written documentation helps validate your claim for damages.
Finally, as a couple, you should deliberate with your lawyer to establish what you consider to be reasonable damages for the challenging situation you face. Your attorney will utilize the evidence available to prove that your amount is reasonable during negotiations with the liable party or in court. After considering the various case factors, the judge or jury will use their discretion to determine your reasonable award amount.
Comparative Negligence Law
The percentage of responsibility will reduce your damage award if your spouse partially caused their injury. California follows comparative negligence laws that divide liability among the involved parties.
In a personal injury claim, the defendant can claim the victim’s negligence contributed to their harm. Then, the jury or judge will determine the apportionment of fault due to the victim’s negligence. The percentage will reduce the overall compensation amount.
How to Maximize Your Compensation Amount
While there are no caps on the loss of consortium damages you can recover, there are ways you can increase your chances of receiving a larger award. They are as follows:
Be Cautious When Talking to the Insurance Company
When providing an insurance adjuster with your statement, avoid answering some questions that can hurt your case. For instance, they can ask, “How are you coping?’’ While it seems commonplace, they can use it against you.
Instead of talking to them, refer them to your attorney. The legal professional will manage all communications on your behalf.
Refrain from Using Social Media
On social media, avoid sharing posts about your partner’s injuries. The defendant and their insurer could be tracking or watching your profile, and your statement(s) could negatively affect your claim. Do not post photos describing what led to your spouse’s injuries or discuss your feelings.
Also, only discuss the claim with your personal injury attorney.
Keep a Journal
You should also keep a daily journal describing how your partner’s injuries affect your life. You can describe how challenging daily tasks have become. Your lawyer will use these details to establish your loss of consortium damages.
Do Not Accept the Insurer’s Initial Offer
Typically, insurance providers are hesitant to pay personal injury settlements. The adjuster can attempt various tactics to elicit a specific response. For example, they can delay the process, deny your claim, give a low offer, or complicate issues. At the very least, they are trying to make you feel like you have no leverage to negotiate a settlement and are counting on you to accept their initial compensation offer.
Nevertheless, you are legally entitled to challenge your claim denial or deny a low offer. Your lawyer will work aggressively to ensure you obtain the maximum compensation for your loss of consortium damages.
Hire a Qualified Personal Injury Attorney
Retaining a seasoned and skilled Orange County lawyer can enable you to recover your deserved compensation. The attorney understands California personal injury law, legal procedures, and how to navigate them. They know the degree of compensation you are entitled to and will use the best legal strategies to ensure you obtain the highest settlement possible.
Your lawyer is experienced in negotiating with defendants and their insurers. Their excellent negotiation skills play a significant role in securing a bigger award than you would via self-representation.
The attorney has access to various resources, including expert witnesses, which can strengthen your claim by providing valuable testimonies and evidence.
The professional has your best interests at heart and can offer impartial guidance, allowing you to make informed decisions and increasing your chances for fair compensation. They will also stand with you throughout the process and maintain constant communication.
Finally, they can review your final agreement paperwork after settlement before you sign it to ensure your future damages are included and you receive a fair settlement.
Be Respectful
You should put your best foot forward to improve your odds of recovering the maximum compensation.
Appearing at hearings or meetings late and failing to treat the involved parties respectfully is a recipe for disaster. Instead, demonstrate class and professionalism. Listen attentively, dress appropriately, and let your lawyer handle all communications.
File Your Personal Injury Claim on Time
Two (2) years is the statute of limitations (SOL) to file a personal injury claim in Orange County for loss of consortium. This timeframe starts ticking when you reasonably discover that your spouse was injured. Typically, it is the accident date, but it can be later if your partner’s injuries take time to manifest.
If your spouse sustained injuries due to medical malpractice, you should file the claim within a year after discovering the injury or three years after the injury occurred.
To seek compensation from a government authority for its negligence, you should file an administrative claim within six (6) months of your partner’s injuries. Then, the government will respond within 45 days:
- If it denies the claim, you can file a personal injury claim against the government within six months of the denial.
- If the government fails to respond, you should file your personal injury claim against it within two years.
Failing to take legal action within this timeframe will leave you without options to fight for your rights. Once the court dismisses your case, the defendant is not obligated to negotiate your claim.
Hire an attorney immediately after your spouse suffers the injury to avoid wasting time. It also gives the legal expert enough time to accurately fill out the relevant paperwork and bring it to court on time.
Frequently Asked Questions
Here are some questions the legal team at Orange County Personal Injury Attorney commonly answers. Please schedule a free, confidential, no-obligation legal consultation with us if your question is unanswered.
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What is the Difference Between Negligence and Intentional Injury?
It is negligence when the at-fault party fails to uphold a required standard of care. Drivers, for instance, are responsible for focusing on the road and protecting other road users. Therefore, it would be considered negligence if a driver fails to focus on the road and causes an accident.
A defendant is considered negligent for failing to do something a reasonable, cautious person would have done in a similar situation.
An intentional tortious injury takes place when a person intends to cause harm. For example, if your juvenile has been subjected to bullying, physically or emotionally, that is intentional.
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How Long Will It Take to Recover Compensation?
There is no easy way of predicting the duration of a loss of consortium case. Like many personal injury claims, it depends mainly on the evidence in your case, including the following:
- The scope of your spouse's injury.
- Complexity of your loss of consortium.
- The number of defendants involved.
- The goodwill of the involved parties to arrive at a reasonable compensation.
When cases proceed to trial, they could take much more time, but the award can be greater and worth the wait.
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What is the Relationship Between Wrongful Death and Loss of Consortium?
Loss of consortium also applies in wrongful death claims. You can file a wrongful death suit if your spouse died due to another person’s negligence. Loss of companionship and love are some of the non-economic damages you will receive.
While wrongful death cases can be emotionally draining and complicated, hiring an experienced lawyer can be instrumental. The attorney can gather relevant evidence and negotiate with the insurance provider on your behalf.
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Does My Case Have to Proceed to Trial?
Most claims do not go to trial. However, sometimes settling out of court is not a legal option if:
- The defendant offers an unreasonable settlement.
- You, the plaintiff, want to go to the trial.
- The defendant and the plaintiff disagreed on damages or liability.
While proceeding to trial is rare, it is wise to be prepared and understand that it is a probability.
Find a Compassionate Personal Injury Law Firm Near Me
It is unimaginable, devastating, and confusing when somebody else’s negligence causes injuries to your spouse or domestic partner. The world stops, and the loss of the benefits of a family relationship becomes apparent when you try moving forward.
Orange County Personal Injury Attorney understands what you are going through and can help you recover the loss of consortium damages you deserve. When you enlist our assistance, an integral part of our work is guiding you through the several considerations needed for every judicial action, including the time and paperwork involved.
Our attorneys can provide the appropriate information to make wise decisions in your case. We can respond to your queries, address any concerns, collect and analyze evidence to build a strong case and explain what to anticipate on the journey ahead. Please call our office at 714-876-1959 to schedule a free initial case review and get started.
