In Florida, if you are injured due to the negligence of another, your spouse may have a claim for loss of consortium. But just because your spouse has a right to make that claim, does not mean he/she should (more on that later). Loss of consortium refers to the comfort, support, and services that the injured spouse is no longer able to provide to the non-injured spouse – e.g. household responsibilities and child-rearing responsibilities; not being able to do the fun things you used to enjoy together; and of course, the loss of ability to engage in sex.
Many of our clients who are able to make this claim emphatically desire us to do so under good intentions: my spouse was injured because of someone else’s negligence, why not seek every dollar to which we are fairly and legally entitled? In theory, I agree. In an ideal world, you SHOULD get the value of everything that was violently ripped away from you after an injury caused by another.
But as a litigation strategy, except under the most dire circumstances, we usually advise our clients to avoid making this claim. Before explaining why, a brief history of the consortium claim is in order:
A long time ago, in England, a proclamation of the monarchy established that a man’s wife was his property. If you damage a man’s wife, you were deemed to have damaged the man. Just as if you were to have negligently injured a man’s cattle, he would be entitled to the diminished value of that cattle (for not being able to provide its services, such as producing milk or tilling the land)… if you took away his wife’s ability to provide her services to him, that man would be entitled to the diminished value of his wife. Over the years, this law eventually evolved into the loss of consortium claim described above.
The claim, obviously, has an unwholesome beginning. Fast forward to just a few decades ago and you would find bad plaintiff’s attorneys abusing the loss of consortium law by attempting to assign huge monetary values on lost services and sex. Eventually, this claim became synonymous with: bad lawyers and plaintiffs who abuse the system. In addition, the defense uses this claim to ask the client many inappropriate and embarrassing questions.
FOR BETTER OR FOR WORSE goes the most famous of wedding vows. The defense will inevitably dwell on this and argue (perhaps rightfully so in certain situations) that non-injured spouses are SUPPOSED to pick up the slack when their other half is unable to perform their usual services. Isn’t that what marriage is all about?
In addition, I do not represent Brad Pitt and Angelina Jolie; and so the average juror does not want to hear or think about my client having sex.
The reality is – loss of consortium claims tend to draw attention away from the real value of the primary cause of action – the very reason we filed a law suit in the first place – which is to fairly compensate the one who endured significant and lasting pain and suffering due to the negligence of someone else.