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self-study / Torts

Oct. 17, 2022

Loss of consortium in personal injury litigation

Allen P. Wilkinson

Email: allenpwilkinson1955@gmail.com

Allen is a widely published legal writer and bestselling author, and currently lives in Orange, California. He can be contacted at allenpwilkinsonjd@gmail.com.

Reza Torkzadeh

Founder and CEO, TorkLaw

11601 Wilshire Blvd Ste 500
Los Angeles , CA 90025

Phone: (310) 935-1111

Email: reza@torklaw.com

Thomas Jefferson SOL; San Diego CA

Reza's latest book is "The Lawyer as CEO."

When a spouse or a registered domestic partner is injured due to the negligence or other tortious conduct of a third party, the other spouse or partner often suffers his or her own injuries. Therefore, counsel handling a personal injury for a married person or person in a registered domestic partnership must be aware of the potential rights of the other spouse or partner to recover damages for "loss of consortium," which can be substantial. Indeed, it may well be legal malpractice not to recognize the potential claim for loss of consortium and inform the other spouse or partner of such possible claim and at least advise him or her of the claim or prosecute it along with the primary action for the injured spouse's action

Loss of consortium between spouses and registered domestic partners involves such noneconomic elements as loss of love, society, companionship, care, comfort, affection, assistance, protection, moral support, training and guidance, loss of enjoyment of sexual relations, and loss of the ability to have children. (See California Civil Jury Instruction 3920.)

In 1974, the California Supreme Court ruled that married spouses have the right to bring their own action for loss of consortium arising from the negligent or other tortious injury to their spouse. A husband may sue for loss of consortium when his wife is negligently injured by a third party, and a wife can bring an action for loss of consortium when her husband is negligently injured by a third party. (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal. 3d 382.) Paraphrasing Dillon v. Legg ((1968) 12 Cal. 3d 728,

730), the Supreme Court stated in Rodriguez that the courts should allow recovery to a wife for losses she personally suffers by reason of negligent injury to her husband would appear to be a compelling proposition. The Court noted that in modern times, generally a husband and wife have, in the marriage relation, equal rights which should receive equal protection of the law.

To prevail on a loss of consortium action, the plaintiff must prove:

1. A valid and lawful marriage or registered domestic partnership (California Family Code section 297.5) existed at the time of injury;

2. The injured spouse or partner was injured due to the negligence or other tortious conduct of the defendant;

3. The spouse claiming loss of consortium did in fact suffer a loss of consortium; and

4. The injury to the other spouse caused the loss of consortium.

It is not necessary for the injured spouse or partner to be physically injured. Loss of consortium can be predicated entirely upon emotional or psychological injuries, as a person may become severely disabled mentally no less than physically, and the resulting detriment to that person's spouse or partner is no less serious than if the disability were an impairment of mobility or other bodily function. (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 931.)

Recovery of damages for loss of consortium is permitted only where the injury to the injured spouse is sufficiently serious and disabling to raise the inference that the conjugal relationship is more than superficially or temporarily impaired. In Anderson v. Northrop Corp. ((1988) 203 Cal. App.3d 772), the plaintiff-wife sued, inter alia, for loss of consortium resulting from the defendant's wrongful termination of her husband's employment. The appellate court denied the woman's claim, stating that her husband's allegations that he had become "mentally upset, distressed and aggravated" as a result of his termination did not rise "to the level of a 'neurosis, psychosis, chronic depression, or phobia' sufficient to substantially disturb the marital relationship on more than a temporary basis." The court found that although the wife may have been upset, her complaint failed to allege that her husband was so incapacitated that he could "no longer be a companion and '[was] no longer capable of giving love, affection, society, comfort and sexual relations to [her]." (Id. at 780-81.)

Married at Time of Injury

The couple must be married or in a registered domestic partnership at the time of the injury-producing event. The fact that a couple were engaged and/or living together at the time of the incident is not sufficient, even if they married shortly after the injury was suffered. (Elden v. Shelden (1988) 46 Cal.3d 267; Matuz v. Gerardin Corp. (1989) 207 Cal. App. 3d 203.) Three factors have justified the court's refusal to extend the right to a loss of a consortium claim to unmarried persons, even though they were living together: (1) the intangible nature of the loss; (2) the difficulty of measuring damages; and (3) the possibility of an unreasonable increase in the number of persons who would be entitled to sue for the loved one's death. (Elden v. Sheldon, supra, 46 Cal. 3d at 277-78.) Note that one case (Butcher v. Superior Court (1983) 139 Cal. App. 58.), permitted a loss of consortium claim by an unmarried cohabitant upon a showing that their relationship was both "stable and significant," but this case has been criticized by other courts. See, e.g., Ledger v. Tippitt (1985) 164 Cal. App. 3d 625, 636-37; Lieding v. Commercial Diving Ctr. (1983) 143 Cal. App. 3d 72.).

When the injured person's injury was caused by a latent event such as exposure to a toxic substance such as asbestos that may take years to cause harm, the element of marriage or domestic partnership is satisfied if the symptoms or diagnosis of the asbestos-related disease occurs while the couple was married or in a registered domestic partnership, even though exposure to the injury-producing substances predated the marriage or partnership. Thus, it was held that the diagnosis or discovery of illness, and not the date of exposure, is relevant for determining whether a spouse or partner may maintain an action for loss of consortium in cases involving a latent disease. (Vanhooser v. Superior Court (2012) 206 Cal. App. 4th 921.)

In a leading case, the couple were married in April 2001. The husband was diagnosed with mesothelioma in September of that year. He had been exposed to asbestos between 1958 and 1995, years before the couple were married. The court held that "[w]here an injury to a spouse that in turn causes injury to the plaintiff's right to consortium in the marital relationship is not discovered or discoverable until after the couple's marriage, and the underlying cause of action thus accrues during the marriage, the plaintiff has a valid claim for loss of consortium even though the negligent conduct may have predated the marriage," (Leonard v. John Crane, Inc. (2012) 206 Cal. App.4th 1274, 1290. Compare with Zwicker v. Altamont Emergency Room Physicians Medical Group (2002) 98 Cal. App. 4th 26.)

Partial Loss of Consortium

One court stated that loss of consortium is actionable only where it is complete. In Park v. Standard Chem. Way Co., the court stated that "[a]n allegation of 'partial loss of consortium' is not equal to the bromide 'a little bit pregnant.' The latter connotes a complete pregnancy, the former is vague and indefinite. We think that loss of consortium ... means a complete loss of consortium for a definite period of time or nondeterminable length of time and is not to be confused with the inevitable physical, mental, and emotional damage normally or usually suffered by one spouse when the other has been wrongfully injured." ((1976) 60 Cal. App. 3d 47, 50-51.) However, Rodriguez v. Bethlehem Steel Corp. talks of a loss or impairment of the spouse's right of consortium, permitting recovery for loss of consortium even where the loss of consortium is only diminished and not complete. (Carlson v. Wald (1984) 151 Cal. App. 3d 598, 602.)

Loss of Consortium as a Nonderivative Claim

The cause of action for loss of consortium is nonderivative; it is an independent, separate, and distinct injury to the spouse or partner. (Leonard v. John Crane, Inc. (2012) 206 Cal. App. 4th 1274, 1279; Rosencrans v. Dover Images, Ltd. (2001) 192 Cal. App. 4th 1072, 1089. Although a spouse's cause of action arises from the physical or mental injury to the other spouse, the injury the consortium-claiming spouse suffers is personal, real, separate and distinct from the injury suffered by the other spouse: "She can no longer enjoy her legally sanctioned and morally proper privilege of copulation or procreation, and is otherwise deprived of her full enjoyment of her marital state." (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal. 3d 405). And in Uram v. Abex Corp. (1990) 217 Cal. App. 3d 1425, 1436, the court stated: "[A] loss of consortium claim is considered an independent injury to the spouse. The loss of consortium injury is not 'parasitic' upon the physically injured spouse's cause of action, nor is it an injury to the marital unit as a whole." (1990) 217 Cal. App. 3d 1425, 1436 (citations omitted).

While joinder of a loss of consortium claim with the injured spouse's personal injury claim is encouraged, it is not mandatory and a loss of consortium claim may be maintained independently. (Rodriguez v. Bethlehem Steel Corp. supra, 12 Cal. 3d at 406-07; Leonard v. John Crane, Inc. (2012) 206 Cal. App. 4th 1274, 1279-80.) Because loss of consortium is an independent cause of action, the dismissal of the injured party's personal injury claim does not moot an appeal from a judgment on the spouse's loss of consortium claim. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 745 fn. 1. See also Leonard v. John Crane, supra, 206 Cal. App. 4th at 1279-81.)

If the injured spouse is wholly or partially at fault for his or her injuries, how does this affect the other spouse's claim for loss of consortium? Section 783 of the California Family Code (previously section 5112 of the Civil Code) abolishes the rule of spousal imputed liability: "[I]f a married person is injured by the negligence or wrongful act or omission by his or her spouse, the fact that that injured spouse is a concurring cause of the injury is not a defense in an action brought by the spouse to recover damages except when the concurring negligent or wrongful act of omission would be a defense if the marriage did not exist."

However, Civil Code section 1431.2 subd. (a) states that in any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount, Civil Code section 1431.2 subd. (b)(2) states that "[f]or purposes of this section, the term 'non-economic damages' means subjective, non-monetary losses including, but not limited to . . . loss of society and companionship, loss of consortium . . .."

Amount of Damages for Loss of Consortium

There are no set standards or guidelines to help determine the amount of damages that should be awarded for loss of consortium. Damages for loss of consortium are essentially for mental suffering. While such damages are subjective, the injury is genuine and the amount to be awarded must be resolved by the impartial conscience of the jurors, who may be expected to act reasonably, intelligently, and in harmony with the evidence. While money cannot truly compensate a person for the destruction of his or her marriage, "it is the only known means to compensate for the loss suffered and to symbolize society's recognition that a culpable wrong--even if unintentional--has been done." (Rodriguez v. Bethlehem Steel Corp. supra,12 Cal. 3d at 777, 779-781.)

Factors to be considered include the severity of the injured spouse's injuries - for example, if the spouse were rendered quadriplegic or suffered a traumatic brain injury leaving him or her in a permanent vegetative state the damages would be considerably higher than if the injured spouse suffered injuries that put him or her out of action for a year or two. Other factors include how long the parties had been married or registered domestic partners and how stable their relationship was. If the couple were in, say, their twenties and had been married only for a couple of years, had a stable marriage and were planning on having children but are no longer able to do so, loss of consortium damages may be substantial. What about a couple that have been married 50 years but have a short life expectancy? Counsel should argue that this is an even more devastating loss to the couple, as it robs them of the comfort, society, and so forth during their Golden Years.

In the case of permanent loss of consortium, damages are based on the life expectancy of the spouse or partner having the shorter life expectancy, as measured before the injury.

One element that must be avoided is that of a double recovery of the spouse claiming loss of consortium. The spouse may not recover economic damages, such as loss of financial support of the injured spouse, providing nursing services, lost wages or lost earning capacity due to quitting his or her job to take care of the injured spouse.

As to the argument that damages for loss of consortium by a third party would enrich the injured spouse or partner for his own negligence as it would be considered community property, the courts have solved this problem by characterizing the spouse's or partner's recovery as separate property rather than community property. (Lantis v. Condon (1979) 95 Cal. App. 3d 152.) Further, a defendant can file a cross-complaint against the injured spouse for indemnity, and by requiring that this liability be discharged from the injured spouse's property before community property can be reached. (Civil Code section 5113(a).)

Loss of Parental Consortium

A child does not have a cause of action for loss of consortium for an injured parent, regardless of how seriously that parent has been injured. The rationale for this is predicated on the fear that unless social policy intervenes at some point to delimit liability, other foreseeable plaintiffs could include the injured person's parents, siblings, cousins, in-laws, friends, colleagues, and other relatives, friends, and acquaintances who will be deprived of the victim's companionship. (Borer v. American Airlines, Inc. (1977) 19 Cal.3d 441.)

Although a child cannot bring an action for loss of consortium when a parent has been injured due to the negligence of another, a child is permitted to recover damages for such loss when the parent is intentionally injured by a third person or wrongfully killed. The distinction is based on the reasoning that recovery for loss of affection and society in a wrongful death action fulfills a deeply felt social belief that a tortfeasor who negligently kills someone should not escape liability completely, no matter how unproductive his victim.

Loss of Filial Consortium

A parent cannot bring an action for the loss of consortium for injuries to a child. The common law permitted a parent to bring an action for loss of services and earnings when a child was injured, because when the common law was developing, children made a greater contribution to the family unit in terms of labor spent and wages earned, either in the family business or in a business outside the home. However, the California Supreme Court concluded that a common law right to recover damages for the loss of a child's earnings and services did not furnish a sufficient basis to distinguish a parent's loss of filial consortium from a child's suit for loss of parental consortium. (Baxter v. Superior Court (1977) 19 Cal. 3d 315.)

The Supreme Court held that the policy reasons which precluded a child's recovery for loss of parental consortium applied with equal force to preclude a parent's recovery for loss of filial consortium:

The intangible character of the loss, which can never really be compensated by money damages; the difficulty of measuring damages; the dangers of double recovery of multiple claims and extensive liability--all these considerations apply similarly to both cases. To be sure, the risk of multiple claims and disproportionate awards is slightly less in the present context, since an injured child has only two parents who can sue for loss of consortium, while an injured parent may have many children. That minor difference between these cases, however, plainly does not suffice to justify allowing a parental cause of action while denying a child's claim. (Id. at 464.)

In a medical malpractice action against a physician for negligence during the labor and delivery of her child, resulting in the child being deprived of oxygen for some 44 minutes before its delivery, the California Supreme Court held that, while the mother could recover damages for emotional distress resulting from the doctor's negligence, she could not recover damages for loss of the child's affection, society, companionship, love, and disruption of the plaintiff's "normal" routine of life to care for her injured son, regardless of how her claim for such damages was denominated. (Burgess v. Superior Court (1992) 2 Cal. 4th 1064.)

As it did with the right of a child to bring an action for loss of parental consortium in the case of an intentional injury, the Supreme Court held that its decision would not bar a parent's loss of filial consortium where there has been intentional interference with the parent-child relationship.

Conclusion

In any case of negligent or other tortious injury to a married person or a person in a registered domestic partnership, counsel must consider the viability of a loss of consortium case for the other spouse or partner. Failure to prosecute a loss of consortium claim or at least fully advise the noninjured spouse or partner of his or her right to bring such an action may well be legal malpractice. When damages to the injured spouse are substantial, most likely the loss of consortium claim will be substantial too. Thus, it is to counsel's benefit all around to advise and/or represent the noninjured spouse in a loss of consortium claim, as well as representing the primary injured spouse or partner in the main case.

#1209

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