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Your Spouse’s Special Claim for Your Injuries – Till Death Do You Part

Yes, you read that correctly, your spouse can assert his or her own claim if you get injured.  What’s better, or worse, depending on how you look at it, (and by the way, did you like the marriage pun?) is that any money recovered goes directly to the husband or wife asserting the claim.

The first kind of claim, and the one most commonly brought, is a claim for “loss of consortium” (pronounced “kun-sore-shum”).  Loss of consortium is defined several different ways, depending on the state you live in.  Generally, it’s a claim for loss of love, society, support, services, and marital relationship.  Some laws or cases refer as a claim for loss of sexual relations, but that’s just the law’s (and our culture’s) obsession with that topic.   In reality, the claim is much broader than that.  Damages are left to the jury’s discretion.  The jury may consider the seriousness of the injury, the length of the injury, and any injury reasonably likely to occur in the future.

A funny aside regarding the loss of consortium claim is that it used to only be available for men for an injured wife.  The old jury instruction read:

Consortium is defined as the right of a husband to his wife’s company, fellowship, cooperation, and assistance in the marital relationship as a partner in the family unit. Loss of consortium includes the impaired ability of his wife to perform her usual services in the care of the home (and in the education and rearing of the children) as well as his loss of her society, companionship, and comfort . . . .

In 1960 (pay attention to these dates), the Alabama Supreme Court ruled that the wife could not assert such a claim.  In 1974, the court reconsidered its prior position and held:

At common law a wife had no independent legal status of her own. In legal contemplation she existed largely as a non person. On this basis a wife was denied a cause of action for the loss of her husband’s consortium. Despite change in a wife’s status through the years, and the enactment of statutes conferring rights on married women, in some instances superior to those of her husband, the common law doctrine that a wife could not sue for the loss of her husband’s consortium was continued in the decisions of this country. Realizing that the old common law basis for the rule had become unrealistic in the more modern social fabric, new reasons were assigned for its continuance. In this manner the old doctrine denying a wife’saction for loss of her husband’s consortium was retained as a vestigial appendage in the body jurisprudence. Analysis of the new reasons set forth for continuing the old doctrine indicates that they simply do not hold water. As usual in such situations, where the reason for the rule fails, the rule eventually falls.

Let’s just say, we’ve evolved, especially from the “wife as a non person” thing, which is good.  (Can you imagine running that one by our wife nowadays?  Good luck.)

But enough about quirks in the law.  You want to know what other claims a spouse may have.  The spouse may also recover for the care he or she provides.  Have to take off work to tend to your spouse?  Lose your job because you have to take care of your spouse?  You might be able to recover those damages.  They may or may not, however, be brought as a separate claim.  Also, you may or may not be limited to the actual value of the services provided, as opposed to your actual losses.

For example, let’s say you lose 30 days of work caring for your spouse after an injury.  If you would have made $6,000 during that time period, you may not be able to recover that full amount.  Instead, you might only get the “value of the care,” which must be calculated based on market rates, which seems a little unfair.

Finally, these claims survive all the way up to the spouse’s death (hence the catchy title).  They are brought in cases of serious injury.  Minor injury cases usually don’t involve these kinds of claims.  The bottom line is that if your spouse has a serious injury, make sure your attorney is investigating and/or pursuing this claim if the circumstances so require.

Edwin Lamberth

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