Losing a loved one can affect you in many ways. You can suffer due to not being able to spend time with them anymore, not being able to participate in favorite pastimes, not being able to benefit from services they provided, and not being able to enjoy intimate relations with them. The term “loss of consortium” refers to the deprivation of familial benefits due to injuries caused by someone else’s negligence.
Understanding this term and how it may impact your case is crucial if you are considering filing a personal injury claim. It can affect your case’s value and your right to recovery. An experienced New York personal injury attorney from Powers & Santola, LLP, can explain the law and how it impacts your rights following a tragic death.
The Impact of a Wrongful Death on Survivors
Few things are more tragic than losing a loved one in a preventable accident. Suddenly, your whole life is different from what you imagined. You may have lost a spouse, domestic partner, parent, or child who held a special place in your heart. It’s hard to contemplate how you will go on with this huge hole in your heart and in your life.
Losing a loved one under these circumstances isn’t fair. Unfortunately, civil courts have no way of bringing back your loved one or easing your pain. Their only remedy is to award you compensation that acknowledges the distress you’re experiencing from your loss of companionship.
What Is Loss of Consortium Under New York State Law
Loss of consortium refers to the deprivation of intimate or close familial ties due to an injury that another person’s negligence causes. Certain family members may be able to pursue loss of consortium claims when the injured person is unable to provide love, affection, companionship, sexual relations, moral support, and assistance in daily tasks.
In New York, an accident that results in injury and impacts a marital relationship provides the basis for a loss of consortium claim. This claim belongs to the victim’s spouse, not the victim. This claim is derived from the spouse’s direct cause of action, rather than being independent of it.
What Is Included in a Loss of Consortium Claim?
Loss of consortium damages can include various types of losses, including:
- Loss of sexual relationships: Accidents can cause serious injuries that prevent victims’ spouses from being able to enjoy a healthy sex life with them.
- Loss of affection and emotional support: Spouses may have a loss of consortium claim when their emotional relationship with the injured victim is impaired. They may lose affection, emotional support, comfort, moral support, solace, society, and other emotional benefits.
- Loss of intimacy: Spouses may have a legal claim due to the loss of their intimate (not just sexual) relationship with the victim.
- Loss of companionship: Being able to spend time and participate in favorite activities with a spouse is a core component of many relationships. Family members can lose these experiences due to serious injuries.
- Loss of support: Spouses often help each other with routine activities. When a person is injured, they may not be able to assist in the same way.
An experienced attorney can evaluate your case to explain which damages you might be entitled to.
Loss of Consortium as Non-Economic Damages
In New York personal injury cases, accident victims may be able to recover economic and non-economic damages. Economic damages provide compensation for direct financial losses, such as medical expenses, lost wages, and diminished earning capacity. The value of these damages is based on invoices, bills, receipts, and other direct evidence.
Non-economic damages are more subjective in nature and compensate accident victims for less tangible losses, such as pain and suffering. Their value depends on the specifics of each case.
Loss of consortium is a form of non-economic damages.
Loss of Consortium and Wrongful Death Cases
In many states, family members in wrongful death cases are able to recover compensation for their grief and loss of consortium. However, this remedy is not available for families in New York. Instead, New York takes the position that wrongful death claimants are entitled only to “fair and just compensation” of pecuniary injuries, meaning they can only recover compensation for their economic damages.
However, it may be possible for family members to recover loss of compensation damages through a survival action, which is a distinct claim from a wrongful death case. This claim belongs to the decedent’s estate and applies to the damages the decedent suffered in the time between the injury and the death. The estate can recover compensation for the injured victim’s pre-death pain and suffering if there is evidence that the decedent experienced cognitive awareness, meaning they were conscious of the pain and suffering. Loss of consortium claims can be filed based on the loss experienced in the time between the injury and death.
Other Damages in Wrongful Death Cases
Other damages that claimants may be able to recover compensation in wrongful death cases include the following:
- Loss of financial support: Dependents may be able to recover compensation for the lost financial support that they experience due to the victim’s injury. The victim may have initially been rendered permanently disabled or forced into taking a lower-paying job. All financial support may have ended when the death occurred. The family can seek compensation for the reduced or eliminated financial support. If the sole distributee is a parent, the court considers the child’s relationship with the parent, any money the child was giving the parent, and the likelihood that the child would have provided financial support in the future.
- Loss of services: Families can seek compensation for the loss of services that the deceased spouse, parent, or child would have provided but for their injury. For example, the victim may have provided childcare, lawn care, home maintenance, housecleaning, or other services. This is a pecuniary loss because the family may have to pay someone for these services instead. To recover these damages, the distributees must provide evidence of the value of these lost services.
- Loss of parental support: If the injured victim is a parent, the children may be able to recover damages for the loss of parental support, which includes the loss of a parent’s moral, intellectual, and physical training, nurture, and instruction.
How Do You Prove Loss of Consortium?
Loss of consortium claims are very subjective. You are basically asking the court to put a value on the relationship you had with your loved one. To establish the right to compensation for lost consortium, you must be able to prove the following:
- Your family member suffered injuries due to the defendant’s negligence.
- You are one of the parties with legal standing to sue for loss of consortium.
- Your loved one’s injury caused the deprivation of consortium.
- You experienced emotional distress, increased responsibilities, lost intimacy, or other harm as a result.
You will likely need compelling evidence regarding your relationship and your loved one’s injuries’ impact on your relationship. This evidence might include the following:
- Medical records detailing your loved one’s injuries and their impact on their activities of daily living
- Your testimony regarding how your marriage suffered after the accident
- Mental health records and therapy notes detailing your emotional distress
- Documentation of additional household responsibilities you took on because of the injuries or payment for services
- Testimony from other family members, friends, coworkers, and others who witnessed the impact the accident had on your loved one’s abilities
- Testimony from medical experts about the likely effects of the injuries on your loved one
An experienced personal injury lawyer can gather the evidence necessary to establish your claim.
How Do You Calculate the Loss of Consortium?
The value of a loss of consortium claim depends on the specific circumstances surrounding the case. Factors that can affect its value include:
- The duration and severity of the injury
- The impact of the injury on the relationship
- The ages of the injured party and the claimant
- The injury victim’s life expectancy
- The health of the injured party before the accident occurred
- The health of your relationship with the decedent
- The care and comfort your loved one provided prior to death
- Whether you have evidence of the activities you and your spouse enjoyed before the death
- Whether you have evidence of how the victim’s injuries affected you and your relationship
- Whether you have evidence of the victim’s role in providing companionship, support, and love
- Whether an expert, like a psychologist or counselor, testifies about the mental health impact of the loss
Who Can File a Loss of Consortium Claim?
New York law limits the parties who can file a loss of consortium claim. These claims are only available to spouses and parents of injured victims.
Unlike in some other states, a domestic partner does not have legal standing to bring a claim for loss of consortium in New York. Only legally married spouses qualify to bring this type of claim, not partners with no legal marital relationship. For example, a spouse may have a claim for loss of consortium if their spouse suffered an incapacitating injury and they must provide substantial assistance and care to the victim.
Parents of a child injured in an accident can also bring a claim for loss of consortium. For example, if a child was seriously injured in a car accident and unable to provide care and affection to their parents, the parents could file a claim for loss of consortium.
In New York, children do not have a claim for loss of consortium, but they can seek compensation for loss of parental support. Siblings also do not have a cognizable claim for loss of consortium in New York.
The Lawyer’s Role in Proving Loss of Consortium
Loss of consortium cases are very complicated. They are based on other types of cases, such as a loved one’s personal injury case or a survival action. An insurance company does not typically provide loss of consortium as part of settlements, so you will likely need to litigate your case to secure these damages. Having a lawyer experienced at handling these complex legal claims is crucial.
An experienced lawyer can guide you through the legal process, explain how New York law affects your case, and prepare the legal paperwork necessary to advance your claims.
Filing Deadlines for Loss of Consortium Claims
Filing deadlines can vary for loss of consortium claims. For a survivorship action, the statute of limitations is generally three years from the accident date or one year from the date of death, whichever is longer. The statute of limitations for wrongful death claims is two years from the date of death.
There are exceptions. For example, if a criminal proceeding is brought alongside the wrongful death claim, the decedent’s personal representative has at least one year from when the criminal proceeding ends, even if the regular statute of limitations ended by this point. If the only distributee is a minor, the statute of limitations is tolled until a guardian is appointed or the distributee reaches the age of majority, whichever occurs first. The best way to determine the deadline that applies to your case is to work with an experienced wrongful death attorney.
Contact Our New York Wrongful Death Lawyers for a Free Consultation
Navigating wrongful death and survival actions in New York without legal representation can be challenging, especially when you are already dealing with so much following the death of a loved one. An experienced personal injury attorney from Powers & Santola, LLP can review your case and explain the damages you may be able to recover. We provide aggressive legal representation to secure maximum compensation for our clients. Contact us today for a free, no-obligation consultation to learn more.
