What is a loss of consortium claim?
Loss of consortium is a claim made by the spouse of an injury victim for the taking of that spouse’s love, support, services, and companionship because of someone else’s negligence. The general idea of the claim is that, because of the defendant’s conduct, the injured spouse cannot provide the non-injured spouse with the same love, affection, companionship, comfort, or sexual relations that were provided before the accident.
Under Missouri Law, the non-injured spouse's claim for loss of consortium is derivative of the injured spouse’s claim for bodily injury. See Rieke v. Brodof, 501 S.W.2d 66, 67 n. 2 (Mo.App.1973); Stephen v. Lindell Hospital, 681 S.W.2d 503, 508 (Mo.App.1984). The claims of the non-injured spouse shall be consolidated into the same claim as the injured person. The non-injured spouse shall be added as a co-plaintiff.
Missouri Supreme Court Rule of Civil Procedure 66.01 provides a strict deadline for when a loss of consortium claim must be filed. According to 66.01(d), loss of consortium claims shall be barred unless the spouse makes application to be added as a party to their spouse’s underlying civil claim within (30) thirty days after the spouse’s written pleading.
Evaluating the value of a loss of consortium claim can be very difficult in pre-suit negotiations. The questions is ultimately one for the fact finder, be it a judge or jury, to decide. Loss of consortium are considered “general” or non-economic damages, meaning they are losses for which money is only a rough substitute.
A word of warning: Plaintiffs looking to make a loss of consortium claim will have to prove the substance of their claim by laying the intimate details of their marital lives before the court. This includes presenting evidence of sensitive marital details and potentially being cross examined about them. For some, this process may be too uncomfortable to bear.
Loss of consortium claims are typically difficult to evaluate. How do you put a specific dollar amount on the intangible love, affection, and support your spouse gives to you? This is something typically awarded by a jury on a case-by-case basis.
In practice, loss of consortium claims are more often used as leverage to get the insurance company to raise their offer during pre-suit negotiations than they are litigated. This is particularly true if the insurance company has not offered the policy limits yet, where a plaintiff’s lawyer can argue for it to tip the scales toward a higher offer.