When you should file a Loss of Consortium Claim?
The state of Illinois recognizes the claim for damages for loss of consortium. Loss of consortium is defined as an injured person’s loss of support, society, companionship, and a sexual relationship that a spouse has been deprived of, and continues to be deprived of in the future, due to the injury or death of a husband or wife. This claim is limited to the marriage relationship only and the cause of action is governed by the same statute of limitation as the claim for the underlying injury. Thus, in order for a loss of consortium claim to stand, an injured or deceased party needs to have an independent, recoverable action against the defendant, from which the loss of consortium claim can derive. However, it is still independent in the sense that an injured spouse’s settlement does not extinguish a claim for loss of consortium but double damages will not be awarded for overlapping claims. According to case law, such a claim recognizes the loss to a person of a highly intimate, individualized relationship with another person. There are several specific factors to note:
- The person making the claim must have been married, according to the laws of the state of Illinois, to their spouse at the time of injury. Engagement or cohabitation is not enough to establish a claim. There must be liability of the defendant to the injured spouse.
- Loss of consortium can be a claim in a wrongful death action. In comparative negligence situations, the claim can be reduced by the negligence of the injured or deceased party, or the negligence of the surviving party.
- There are no punitive damages available for loss of consortium claims.
Check with the insurance policies in your state. Some may not allow for a loss of consortium claim due to their policies stating that they will only cover “bodily injury” in personal injury claims.
Loss of consortium claims can delve deeply into the personal life of the couple. In one case, an injured spouse’s extramarital affair was relevant in determining the amount of the loss of consortium claim the spouse could recover. Other issues, such as impotence, living arrangements, the health of the relationship, and the schedule of household duties may be assessed to determine the recovery for each aspect of a claim. A claim will be extinguished in Illinois when a surviving spouse remarries.
If you want to make a loss of consortium claim, it is very important to document the injury as much as possible. Examples would include documenting a loss of intimate relations in a diary, or documenting the effect of the loss of companionship. It is important to seek a local attorney immediately who can offer guidance on the best evidence for your claim.
This article is for general informational purposes only and is not to be construed as legal advice. Do not rely on the above information as all cases are different and different laws apply to different cases.
Consult an attorney in your area for further guidance. If you or your spouse were injured by an accident please call one of our attorneys at David K. Kremin & Associates, and we will give you a free consultation. We never charge unless we collect for you. Please call 1(800) ASK-A-LAWYER or 1(800)275-2529.