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Loss of Consortium: A Derivative Action in Most Jurisdictions

Depending on the jurisdiction, spouses, children, and parents may be able to recover for a “loss of consortium” in personal injury and wrongful death actions. Some states have extended the availability of loss of consortium damages to other parties, including grandparents and non-married cohabitants. Note, however, that the status of the law with respect to this issue varies considerably among states.

As a general proposition, loss of consortium damages seek to compensate an individual for the loss of affection, care, companionship, love and support which may result from an injury to a loved one. For example, suppose Winston is severely injured by a wrongdoer. In a subsequent personal injury lawsuit, Winston will likely sue for damages resulting from his physical injures. In addition, in jurisdictions that permit it, Winston’s spouse, for example, may also sue the wrongdoer to compensate her for the loss of consortium she suffers as a result of Winston’s injuries.

Majority Rule: Derivative Action

The vast majority of jurisdictions categorize a legal claim for loss of consortium damages as a “derivative” action. This means that recovery in the suit for loss of consortium damages depends on the success of the injured family member’s own action. If the injured party’s claim fails, then the loss of consortium claim must also fail.

As a consequence of its derivative nature, a claim for loss of consortium damages may be defeated by any defense that would prevent recovery by the injured party. For example, many jurisdictions recognize the doctrine of “comparative negligence.” Though application of the doctrine varies by state, comparative negligence systems generally operate to reduce a plaintiff’s damages by his or her percentage of fault.

To illustrate, assume that Damien negligently drives through a stop light and collides with Peggy, but Peggy contributes to the accident by driving inattentively. If a jury determines that Peggy was 40% negligent and Damien was 60% negligent, Peggy’s damage award will be reduced by 40%. However, in “modified” comparative negligence jurisdictions, Peggy’s award may be completely barred if her negligence passes a threshold level (e.g., 50% or more at fault).

With respect to loss of consortium awards, a majority of jurisdictions hold that the fault of the physically injured party will likewise either reduce or bar recovery. Therefore, in the example above, if Peggy’s husband seeks to recover for loss of consortium, his award will also be reduced by 40%.

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