Tragically, not everyone walks away from an accident, whether a car crash, truck accident, or slip and fall. Unintentional injuries kill over 200 thousand people each year. Often, these individuals leave behind spouses or domestic partners, parents, and children, who are left to pick up the pieces and face potentially long lives without their loved ones by their sides.
When you think of a personal injury claim, you might think of injured victims getting compensation for their medical costs and time off work, but where do you stand if you’ve lost your partner, parent, or child in an accident?
You might be entitled to loss of consortium. Loss of consortium is a type of damages you can claim in a personal injury case to compensate you when your relationship with your loved one has changed.
We look at loss of consortium in more detail, including its legal definition, how to claim it, and the factors that can impact your compensation.
What Is Loss of Consortium? The Legal Definition
According to the leading legal dictionary Wex, the definition of loss of consortium is as follows:
Deprivation of the benefits of a family relationship (including affection and sexual relations) due to injuries caused by a tortfeasor.
But what does that mean? Let’s break it down.
In simple terms, an individual can claim for loss of consortium when they have lost or been deprived of companionship, sexual relations, affection, and emotional and financial support from a loved one due to injuries caused by another party.
This party can be a person, company, or governmental agency, such as:
- The driver of another vehicle in a car accident.
- A truck company that allows an unlicensed truck driver on the road, who crashes into your spouse.
- A retail store or restaurant that fails to ensure wet floor signs are placed near spillages, resulting in your loved one falling.
The “benefits of a family relationship” can comprise many things. In a spousal relationship, physical injuries may prevent a couple from having physical intimacy (sex) or leave one partner unable to perform household chores or duties. If the injured or deceased partner is the family’s breadwinner, a spouse may be financially affected, unable to pay the bills, or provide for the rest of their family. Accidents can also cause emotional injuries that entitle an individual to loss of consortium damages, such as if depression or anxiety affects the relationship.
In most states, loss of consortium damages can only be recovered by spouses, but this is not the case in Texas.
What Does Texas Law Say about Loss of Consortium?
In Texas, loss of consortium can be considered “loss of love” or “loss of affection,” as these damages can extend to those who have lost a parent or child — not just a spouse or domestic partner.
However, these are subject to specific criteria.
In Texas, a spouse or child can recover damages for loss of consortium if their partner or parent is killed or seriously injured. Parents can only claim these damages if their child dies.
Loss of consortium damages cannot be recovered by siblings, grandparents, or family friends of the injured or deceased person.
How to Claim for Loss of Consortium
The first step to recovering loss of consortium damages is to determine what type of claim you need to file. If a child, parent, or spouse has died in an accident that wasn’t their fault, you must file a wrongful death claim. This type of claim allows you to recover additional costs, such as funeral costs and lost wages your loved one would have gone on to earn, were it not for their fatal accident.
If your spouse or parent has been injured and it’s significantly affected your relationship, you can only file a loss of consortium claim.
This is different from a traditional personal injury claim, and making the distinction is vital. A personal injury claim allows injury victims to recover compensation for several types of damages, including the cost of their medical treatment, lost wages, and pain and suffering. If your spouse is injured, you can only claim for loss of consortium, while your partner can file a personal injury claim to recover the remaining damages.
This is because loss of consortium damages are not intended to compensate for your loved one’s injuries — only for the change in the relationship that occurred because of the accident.
The process of claiming for loss of consortium begins with filing the claim. In Texas, if a person is injured in an accident due to the negligence or recklessness of another person or party, they can recover the associated costs (or damages) from the person or party responsible.
For example, if your spouse was killed in a car accident because another driver was intoxicated, you can file a wrongful death claim against the drunk driver.
But in any personal injury claim, you must have evidence. A wrongful death claim means proving that the other party caused the accident that killed your loved one. You will also need evidence of the damages you wish to claim, such as receipts for their funeral, medical bills for treatment before their death, and pay slips showing their earnings.
For loss of consortium claims, your evidence needs to show your loved one’s accident had a significant and direct impact on your relationship and deprived you of the benefits of that relationship.
Take the following example. One spouse is in a car accident that severs their spinal cord, resulting in the couple not being able to have children. It also leaves the injured spouse completely dependent on their partner — they are unable to do household chores and cannot provide the same level of attention and physical intimacy.
In this case, the injured partner’s spouse would be able to recover compensation for loss of consortium from the person or party that caused the car accident.
The evidence they rely on to prove their entitlement might include:
- The marriage certificate showing the spousal relationship
- Testimony from family members about the stability of the marriage
- Records showing that the couple lived together
- Medical records showing when their partner’s injury happened and its severity
- Testimony from the injured spouse talking about how their relationship has changed.
This evidence can help prove that one partner has truly suffered a loss of consortium.
The next step in a loss of consortium or wrongful death claim is to negotiate with the responsible party’s insurance company. Often, the insurance company will make an offer shortly after an accident to settle the claim and drop any further legal action, such as going to trial.
It’s worth mentioning that accepting an insurance company’s first offer is rarely advisable, as it’s often much lower than what you deserve.
A personal injury lawyer can help you negotiate a sum that fairly compensates you for your loss.
Several factors can impact the amount of compensation awarded in a personal injury or wrongful death case, including the type of relationship, the severity and duration of the injuries, the age and health of the injured party, and the specific circumstances of the case.
For example, if your partner is young and sustains life-changing injuries that will permanently change your relationship, or if you’ve lost a child, you will likely be entitled to significant compensation.
It’s highly recommended you seek legal advice when pursuing loss of consortium damages or filing a wrongful death claim. Our experienced and compassionate personal injury lawyers in McAllen and San Antonio can help you understand your options, advocate for your rights, and get you the compensation you deserve.
If you’ve lost a loved one in a tragic accident or your relationship with your spouse has changed after they were in an accident that wasn’t their fault, our dedicated personal injury and wrongful death lawyers in San Antonio and McAllen can help you get justice and compensation. To see if you have a claim, book a free, no-obligation review. Call 855-LAW-NINJA or fill in our confidential contact form today.