When we talk about “damages” in a South Florida personal injury lawsuit, we’re referring to the monetary value of what you have lost as a result of the incident or accident. Some losses obviously have no price tag, but that doesn’t mean those responsible shouldn’t be held accountable for it. You have likely heard of damages for medical expenses, wage losses, pain and suffering and even mental anguish. One type of damage lesser known (but no less important) is specifically for those closest to the person hurt or killed. It’s called loss of consortium.
Loss of consortium, as defined by the Florida Supreme Court in the 1971 case of Gates v. Foley, is filed by the spouse of the person injured as a result of a third party’s wrongful conduct. It’s intended to compensate a surviving spouse for loss of affection, solace, comfort, sexual relationship, fellowship, society, household services and assistance necessary for a successful marriage.
(Minor children and parents of minor children might also have grounds for loss of consortium in some circumstances.)
It’s important to understand that while a claim for loss of consortium is a claim separate and distinct from the primary claim, Florida courts have long held it is nonetheless a derivative one. That means its success is dependent on the injured person’s underlying claim. However, it’s possible that an impaired spouse’s claim could be settled and the deprived spouse’s loss of consortium claim would still proceed to trial.
Proving a Loss of Consortium Claim
Spousal loss of consortium claimants in Florida must establish:
- A valid marriage existed at the time of injury between impaired spouse and deprived spouse;
- Impaired spouse suffered a qualifying injury;
- The deprived spouse’s loss of consortium was proximately caused by defendant’s conduct (not a cause unrelated);
- Plaintiff suffered actual loss of consortium.
It’s worth pointing out that there really isn’t any clear method available by which a jury is able to objectively calculate such damages. The reality is, we’re asking the jury to put a price tag on something for which there cannot be one with any repeatable accuracy. This is one reason why plaintiff attorney experience and skill is critical in these cases.
Are There Risks Involved With Loss of Consortium Claims?
There are a few risks that you should discuss with your South Florida injury lawyer before proceeding with a loss of consortium claim.
One is less a risk and more of a fair warning. Establishing loss of consortium requires showing how your relationship with your loved one was before and how it has changed as a result of the accident. That could mean that some elements wade into territory that can make people feel uncomfortable. With the help of a skilled legal team, we can help you present your position in way that is compelling and effective, but also tasteful and respectful.
The main possible risk with a loss of consortium claim is the possibility of coming out on the losing end of something called an Offer of Judgment, intended to encourage pretrial settlements (and spare the court system the time and expense of trial) in accordance with F.S. 768.79. Let’s say the defense offers to settle your loss of consortium claim for $100,000. You decline and decide to take your case to trial. Assuming that pretrial settlement offer met certain conditions (was in writing, made in good faith, etc.), you would have to be awarded at least $75,000 (25 percent less than the settlement offer) on your claim at trial. If you do not, your damage award can be offset by an award of attorney’s fees to the defense.
But this can go both ways too. Let’s say YOU offer to settle for $100,000 and the defendant does not accept. If you then take your case to trial and are awarded $125,000 (25 percent more than your settlement offer), the defense can be ordered to pay YOUR attorney’s fees.
In many cases where serious personal injury has impacted the strength of your marital relationship, the possibility of a loss of consortium claim is something you should discuss with a longtime West Palm Beach injury attorney.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Conti v. Auchter, March 15, 2019, Florida’s Fifth District Court of Appeal