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Can My Spouse Seek Compensation in a Personal Injury Claim?

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Peter J. Gregory
May 22, 2022
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“Loss of consortium” is one of two primary causes of action which arise when a spouse is injured in a personal injury action, but will not apply in certain situations, such as when a spouse has died in a wrongful death claim. The first cause of action deals with the claims that can be asserted and the damages recoverable by the physically injured person. These include damages for conscious pain and suffering, loss of past and future earnings, past and future medical expenses, and other similar elements of damages. In addition, if the injured person is married, the other spouse is entitled to bring a second cause of action to recover damages for loss of consortium. 

Consortium represents the interest of the injured party’s spouse in the continuance of a healthy and happy marital life, and the consortium cause of action seeks to compensate for the injury to that relationship. Loss of consortium includes not only loss of support or services, but elements of love, companionship, affection, society, sexual relations, solace, and more. It is not necessary that there is proof of any financial loss to sustain the claim.

This loss of consortium claim only applies to persons who are in a marriage when the injury occurs. If a party is injured before the marriage, the inability to provide the support and services referred to as "consortium" is apparent at the time of marriage, so the spouse never has any consortium to lose, nor any expectation of consortium.

Since this is a cause of action which is derived from the original claim of damages to the injured party, in some jurisdictions it must be brought in the same suit, and if the primary cause of action is dismissed, then the loss of consortium claim will always be dismissed as well. It has been found that loss of consortium can be asserted even when the principal claim is based on emotional rather than physical injuries, which allows a claim to be brought even if the primary injury was mental rather than a physical impairment. It does not matter how small the claimed loss is, any loss of consortium claim is compensable.

One scenario where a claim for loss of consortium may be limited is if comparative negligence applies. This looks at whether the spouse claiming loss of consortium or the injured party were at fault for the injury. To the extent that one of these two parties are liable for the injury, the recovery for loss of consortium damages may be limited.

If you or a loved one has sustained a serious injury, an experienced personal injury attorney can help. It is important to consult with a lawyer early to investigate your options, and preserve crucial evidence.  For assistance with these matters, please contact us to learn more.

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About the author:  Peter J. Gregory is a partner with the firm.  He is a trial lawyer with extensive experience resolving disputes in state and federal trial courts. His personal injury practice focuses on advising clients who have been injured or lost loved ones in accidents caused by the carelessness or recklessness of others. Please feel free to contact him directly at pgregory@mccmlaw.com or (585) 512-3506.

This publication is intended as an information source for clients, prospective clients, and colleagues and constitutes attorney advertising. The content should not be considered legal advice and readers should not act upon information in this publication without individualized professional counsel.


About MCCM

McConville Considine Cooman & Morin, P.C. is a full-service law firm based in Rochester, New York, providing high-quality legal services to businesses and individuals since 1979.  With over a dozen attorneys and a full paralegal support staff, the firm is well-positioned to right-size services tailored to each client. We are large enough to provide expertise in a broad range of practice areas, yet small enough to devote prompt, personal attention to our clients.

We represent a diverse range of clients located throughout New York State and New England.  They include individuals, numerous manufacturing and service industry businesses, local governments, and health care professionals, provider groups, facilities and associations. We also serve as local counsel to out-of-state clients and their attorneys who have litigation pending in Western New York courts.  For more information, please contact us at 585.546.2500.