What does “loss of consortium” actually mean?
A person making an Oregon loss of consortium claim is in legal terms saying they have been deprived of the benefits of a family relationship because of injuries caused by someone else’s negligence. The term was first used in English common law, and one of the first recorded cases was Baker v Bolton in 1808, when a man was granted damages for loss of consortium after his wife had been injured in a carriage accident.
The term is derived from a Latin phrase, “per quod servitium et consortium amisit,” which translates to “in consequence of which he lost her society and services.” As far back as the 18th century, courts recognized the need to protect the relationship between husband and wife, and they still do. The different categories being protected under loss of consortium lawsuits include:
- The economic contributions of the injured spouse to the household
- Care and affection
Even then, however, the claims did not necessarily have to revolve around a husband-wife relationship. In one notable case—again in old England—a father sued a young man who was courting his daughter; the father claimed he had lost the consortium of his daughter’s household services because she was spending too much time outside the house with her young suitor.
Laws vary greatly from state to state
In some jurisdictions, loss of consortium can be an actual cause to take a civil action, completely independent from any other cause. Maine would be an example where this view of loss of consortium is held.
An Oregon loss of consortium claim, on the other hand, is generally viewed as an element of damages and not as an independent cause of action in its own right. Loss of consortium is frequently included in wrongful death lawsuits as one element of the damages being claimed, but loss of consortium is certainly not limited strictly to cases where wrongful death has occurred.
Some jurisdictions will only consider spousal loss of consortium, generally considered to mean sex. An Oregon loss of consortium claim, however, can also be made by a parent who has lost the love and affection of a child, or vice versa. Oregon statutes are wide-ranging and can, in some cases, include step-children and other dependent family members.
When and How to make a loss of consortium claim
The first questions that must be asked when preparing an Oregon case for loss of consortium is when the action should be filed, and on whose behalf should the claim be made. In Oregon, the answer to the second question is far easier than the first in some cases. A loss of consortium claim should be filed on behalf of as many family members are possible and practical and usually include:
- A spouse
- A parent or step-parent
- A child or step-child of the injured victim
- A dependent sibling
The question of when to bring the case is not so straightforward, and advice from a highly experienced attorney is strongly advisable. Insurance companies will fight hard to keep settlement amounts to the bare minimum, and they can make testifying in a loss of consortium claim very uncomfortable for the uninjured claimant, should the case go before a jury.
Representatives of the defendant fighting an Oregon loss of consortium claim will dig deep and ask awkward questions, particularly if the claim arises from a traumatic injury as opposed to a wrongful death. They can and often do ask such questions as:
- What state was the relationship in before the accident? If it was any way shaky, the defense will argue that the claimant hasn’t really lost the love and companionship they are claiming has been taken from them.
- Has the husband ever been abusive to the wife?
- Has either of the couple ever been in prison?
- Did the couple ever seek marriage guidance counseling?
- In injury cases, the defense could claim that no loss of love and affection has occurred, and they will rigorously examine the claimant in front of a jury to establish this fact.
A Portland loss of consortium attorney will advise their clients on what to expect, and to be certain, the insurance company will want to settle legitimate claims before they get to court. Anyone filing a loss of consortium claim, however, must be prepared to face a barrage of questions, possibly about the most intimate details of what they had thought was their private life.
An Oregon loss of consortium claim can be made in severe personal injury cases as well as wrongful death cases, particularly if the injuries prevent a married couple from being able to have intercourse. Once again, if the case proceeds to court, the claimant will have to be prepared to answer potentially embarrassing questions. This is something you will need to discuss with your personal injury lawyer before the claim is made.
The loss of consortium of a loved one, be they spouse, parent or child is a horrible thing for any family to have to endure. When the loss is the result of someone else’s negligence, the pain is even worse. Fortunately, victims have rights, and an Oregon loss of consortium claim, properly presented by an understanding, compassionate and highly experienced personal injury attorney, can be a vital element in the healing process. If you are thinking of filing an Oregon loss of consortium claim, phone a good lawyer first. They will answer all your questions and hopefully put your mind at ease.