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1) What is loss of consortium?
2) What is included in a loss of consortium claim?
3) Who can pursue a claim for loss of consortium in Georgia?
4) Does a child have a claim for loss of consortium for an injured parent?
5) Does a spouse have to sit for a deposition?
6) Do I have to disclose marital counseling records?
7) Do I have to disclose intimate details about our sex life?
9) How do you prove loss of consortium injuries?
10) How do you prove a damages to a spousal relationship?
11) How do you prove the value of loss of consortium damages?
12) Can I claim costs for having to hire a maid to make up for household services lost?
13) Can loss of consortium damages be apportioned?
14) Can a loss of consortium claim be pursued for the wrongful death of the other spouse?
15) How long do I have to pursue a loss of consortium claim in Georgia?
17) Can I recover for punitive damages for loss of consortium?
18) What is the history of Georgia's loss of consortium claim?
19) How are loss of consortium damages compensated under a car insurance policy?
Loss of consortium is a claim that an affected spouse can pursue when the other spouse has been injured from another person’s wrongful conduct.
It is based solely upon the damage done to the claiming spouse’s property right arising out of the marital relationship.
In other words, when Spouse A suffers a physical injury, Spouse B is entitled to pursue a loss of consortium claim based on how Spouse A’s injuries have affected their marital relationship.
Under the exclusive remedy rule, loss of consortium damages are not available for workers compensation claims unless specifically allowed under the workers compensation statutes.
References:
Thompson v. Allstate Ins. Co., 285 Ga. 24, 26–27 (2009);
Mears v. Gulfstream Aerospace Corp., 225 Ga. App. 636, 641 (1997);
Sevcech v. Ingles Markets, Inc., 222 Ga. App. 221, 225 (1996);
Bartlett v. Am. All. Ins. Co., 206 Ga. App. 252, 254 (1992);
Savannah Hosp. Servs., LLC v. Scriven, 350 Ga. App. 195, 196 n.2 (2019);
Henderson v. Hercules, Inc., 253 Ga. 685, 685 (1985).
1) What is loss of consortium?
A claim for loss of consortium is a broad way of describing the damages one spouse’s physical injuries have affected the entire marital relationship.
It is made up intangible elements that is meant to dignify that the “marital rights and duties” have been interrupted due to the physical injuries to one spouse.
These intangible elements are conceptualized by Georgia courts and legal scholars in different ways. For instance, it is any interruption to the “conjugal affection, fellowship, company, co-operation, and aid” in the spousal relationship. Stated another way, it is the “loss of the love, society, companionship, and comfort of the wife or husband.”
References:
Brown v. Hauser, 249 Ga. 513, 514 (1982);
Lee v. Thomason, 277 Ga. App. 573, 576–77 (2006);
W.J. Bremer Co. v. Graham, 169 Ga. App. 115, 116 (1983);
Smith v. Tri-State Culvert Mfg. Co., 126 Ga. App. 508, 510 (1972);
Hosford v. Hosford, 58 Ga. App. 188 (1938).
2) What is included in a loss of consortium claim?
Only one spouse can bring a loss of consortium claim – the one affected by the injury done to the other spouse.
So, if Spouse A suffered an injury, only Spouse B can pursue a loss of consortium claim.
Although Spouse A does not a specific loss of consortium claim, he/she does have plenty of other general damages and remedies that serve the same purpose, derivative of their “pain and suffering” claim (i.e. mental and emotional distress and suffering, disability, loss of enjoyment of file, diminished capacity to labor, etc.).
References:
Stapleton v. Palmore, 250 Ga. 259, 260 (1982);
Huddle v. Heindel, 347 Ga. App. 819, 826 (2018);
White v. Hubbard, 203 Ga. App. 255, 256 (1992).
3) Who can pursue a claim for loss of consortium in Georgia?
4) Does a child have a claim for loss of consortium for an injured parent?
In Georgia, a child cannot pursue a claim for loss of consortium due to injuries of a parent.
Intuitively, this makes sense in that loss of consortium claims arise out of injuries to a marital relationship.
However, it’s not a crazy question. Some states do recognize that children have a right to pursue loss of consortium claims for the damage done to a parent-child relationship. Georgia is not one of those states, unfortunately. As a result, loss of consortium is also unavailable to parents (for injuries to a child) as well as to unmarried fiancés.
References:
W.J. Bremer Co. v. Graham, 169 Ga. App. 115, 116 (1983).
If the spouse is pursuing a loss of consortium claim, they are required to sit through a deposition.
And, the defense attorney is allowed to ask relevant questions regarding the loss of consortium claim.
5) Does a spouse have to sit for a deposition?
Maybe. These records may be relevant to prove the strength and value of your loss of consortium claim.
Prior marriage problems may also be relevant to proving whether a personal injury actually caused the marital problems experienced by the spouses.
That’s because loss of consortium damages are not automatically presumed in a personal injury case. Instead, they must be proven, and prior marriage troubles can be proof that the marriage problems pre-existed any physical injury to one of the spouses.
As a practical matter, the answer to this questions depends on how aggressive the defense attorney wants to be. At the least, you would need to disclose you've needed marital counseling in the past.
For instance, if you and your spouse were living apart at the time of the injury due to marital differences, but still legally married, your loss of consortium claim may not be very strong, and marital counseling records may be relevant for that.
Similarly, if you had already experienced significant marital complications, marital counseling records can also be relevant to the strength and value of your loss of consortium claim – even if you were not living apart. In that case, a defense attorney would be in a stronger position to argue that he should have access to any marital counseling records.
But, if you’re marital counseling was done to help strengthen your marriage after a traumatic experience, such as the unexpected loss of a child, these records would be less relevant and a plaintiff’s attorney could argue to keep them confidential. Or, if the counseling took place in the remote past, then there would be additional arguments to keep them confidential.
References:
Copelin v. Russell, 205 Ga. App. 540, 542 (1992);
Mortensen v. Fowler-Flemister Concrete, Inc., 252 Ga. App. 395 (2001);
Johnson v. Loggins, 211 Ga. App. 265, 265 (1993).
6) Do I have to disclose marital counseling records?
Damages or interruption to marital intimacy can be a part of a loss of consortium claim, but it is not required.
Loss of consortium claims embody several different intangible elements, including marital intimacy. But, it also includes nonsexual aspects of a marital relationship.
Understandably, many spouses do not pursue loss of consortium claims because they do not want to reveal intimate, private details about their lives, including intimacy with their spouse. However, Georgia case law suggests that a loss of consortium claim can be pursued, but limited to solely the nonsexual aspects of a marriage. In that case, it follows that your spousal intimacy can remain private.
For example, one Georgia court has allowed compensation for loss of consortium when there was no evidence of damage to the marriage intimacy. Instead, all that was shown was that the personally injured spouse had become moody, quiet, sad, and depressed. He needed help putting on sucks, and had trouble remembering things. This was enough to justify the loss of consortium damages.
References:
Brown v. Hauser, 249 Ga. 513, 514–15 (1982);
Lee v. Thomason, 277 Ga. App. 573, 577 (2006).
7) Do I have to disclose intimate details about our sex life?
8) Does a loss of consortium claim include the spouse’s lost wages, medical expenses, and similar damages?
A claim for loss of consortium does NOT compensate for the lost wages, medical expenses, etc. for the spouse.
Instead, loss of consortium claims are general damages that are meant to reflect that injury done to the marital relationship.
For instance, let’s assume Spouse A was injured in a car accident and required around-the-clock care for several months that only Spouse B could provide. Spouse B was required to quit her job to provide this care. Spouse B would not be entitled to pursue a claim for the wages and income she lost when she quit her job to care for Spouse A.
Alternatively, if Spouse B pays for the medical expenses of Spouse A by hiring a home health care worker to provide around-the-clock care, those medical expenses are not recoverable as part of a loss of consortium claim. Instead, they are part of Spouse A’s personal injury claim for medical expenses.
For this reason, a health care lien (i.e. hospital lien, health insurance subrogation, etc.) is not reimbursable from a loss of consortium claim.
References:
Magill v. Edd Kirby Chevrolet, Inc., 277 Ga. App. 619, 621 (2006);
Branton v. Draper Corp., 185 Ga. App. 820, 821 (1988);
Epps v. Hin, 255 Ga. App. 370, 371 (2002);
Holland v. State Farm Mut. Auto. Ins. Co., 236 Ga. App. 832 (1999).
Basically, any evidence that demonstrates the marital relationship has altered, adapted, or changed as a result of a spouse’s personal injury can be used to prove loss of consortium damages.
Usually, the evidence of the underlying personal injury case intrinsically suggests loss of consortium injuries.
The injured spouse's testimony is the best source of proving loss of consortium injuries. They can testify, in specific detail, how their marital lives have changed.
Before-and-after witnesses can lend credibility to the injured spouse's testimony. These witnesses can also verify that the personally injured spouse has experienced a change in physical and/or emotional condition that naturally will interfere with the marital relationship.
Loss of consortium injuries can also be demonstrated by more direct, objective evidence, such as:
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Medical records (demonstrating physical injuries suffered);
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Therapy/counseling records;
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Day-in-the-life videos (for catastrophic injury victims);
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Costs for services to replace lost household services (i.e. maids, yard care, childcare, etc.);
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Mortality tables (to demonstrate life expectancy).
References:
Lee v. Thomason, 277 Ga. App. 573, 577 (2006);
Mortensen v. Fowler-Flemister Concrete, Inc., 252 Ga. App. 395, 397 (2001);
Johnson v. Loggins, 211 Ga. App. 265, 265 (1993);
Hightower v. Landrum, 109 Ga. App. 510, 513 (1964);
Cody v. Peak, 113 Ga. App. 676, 677 (1966).
9) How do you prove loss of consortium injuries?
10) How do you prove a damages to a spousal relationship?
Damages and injuries to a spousal relationship does not need to be purely intimate.
There are many facets of a successful marital relationship, and evidence towards these can prove loss of relationship, such as:
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Problems communicating;
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Increased irritability/depression of the injured spouse;
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Stress of having to care for an injured spouse;
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And others
Loss of relationship is usually proven through sworn testimony of your experiences in conjunction with the injured spouse's medical records. If applicable, counseling records can also document the changes to the marital relationship.
11) How do you prove the value of loss of consortium damages?
No direct evidence is required.
Instead, loss of consortium damages are general damages calculable by the enlightened conscience of the jury.
As a practical matter, loss of consortium is usually calculated at a derivative – or fraction – amount of the injured spouse’s total recovery. Factors relevant to that calculation include:
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Total amount awarded to the injured spouse;
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Nature and severity of the injured spouse’s physical and mental injuries;
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Joint life expectancy and ages of the spouses;
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Number of children in the family (if any); and
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Other specific evidence of circumstances.
12) Can I claim costs for having to hire a maid to make up for household services lost?
If an injured party’s loss of household forces you to hire a maid or similar help, those costs can admitted as evidence of the value of a loss of consortium claim.
However, loss of consortium damages are an item of general damages. Meaning, they are valued solely by the enlightened conscience of the jury, so you are not entitled to the reimbursement of these costs.
13) Can loss of consortium damages be apportioned?
Loss of consortium damages can be apportioned to the same extent that the personally injury spouse's damages are apportioned.
That's because loss of consortium claims are derivative of the personally injured spouse's injury claims. So, they are subject to the same defenses, including apportionment of liability.
Under Georgia's apportionment statute, damages can be apportioned (or offset) in proportion to the division of fault. For example, let's assume Spouse A was in a motor vehicle collision and the jury finds that Spouse A was 25% at-fault in the collision. Let's also assume that Spouse B is awarded $10,000 in loss of consortium damages. This award would be reduced - or apportioned - to the degree Spouse A was found to be at-fault, and Spouse B would only be entitles to recover $7,500.00 (or 75% of the $10,000 award).
References:
O.C.G.A. § 51-12-33;
Johns v. Suzuki Motor of Am., Inc., 850 S.E.2d 59, 61 n. 4 (Ga. 2020);
Suzuki Motor of Am., Inc. v. Johns, 351 Ga. App. 186, 198–99 (2019), cert. denied (Jan. 13, 2020), cert. granted (Jan. 13, 2020), aff'd, 310 Ga. 159 (2020);
Zaldivar v. Prickett, 297 Ga. 589, 590 (2015).
14) Can a loss of consortium claim be pursued for the wrongful death of the other spouse?
A loss of consortium claim only compensates for damages incurred during the joint lives of the spouses.
Remember, loss of consortium claims dignify the injury to the marital relationship. If one spouse dies or divorces the other spouse, a marital relationship no longer exists.
So, a loss of consortium claim is not available for the death of an injured spouse. That’s because the damages allowed in a wrongful death claim intrinsically includes many of the intangible elements in a loss of consortium claim.
There are exceptions, however. For instance, if the spouse suffered a personal injury and lived for any period of time before their death, the surviving spouse may still pursue a claim for loss of consortium to dignify the damages done prior death, no matter how nominal it may seem.
References:
Marzetta v. Steinman, 117 Ga. App. 471, 472 (1968);
Walden v. Coleman, 105 Ga. App. 242, 243 (1962).
Generally, loss of consortium claims have a four (4) year statute of limitation.
This is longer than the two (2) year statute of limitation for the underlying personal injury claims the other spouse may pursue.
However, there is an exception for medical malpractice claims. Georgia’s general assembly has specifically legislated that loss of consortium arising from a medical malpractice claim has a two year statute of limitations.
Similar treatment has been applied to loss of consortium claims arising out of Georgia Tort Claims Act.
References:
O.C.G.A. § 9-3-33
O.C.G.A. § 9-3-34
O.C.G.A. § 9-3-71
Beamon v. Mahadevan, 329 Ga. App. 685, 688 (2014);
Perry v. Atlanta Hosp. & Med. Ctr., Inc., 255 Ga. 431, 431 (1986);
Hamby v. Neurological Assocs., P.C., 243 Ga. 698, 698 (1979);
Burroughs v. Georgia Ports Auth., 339 Ga. App. 294, 296–97 (2016).
15) How long do I have to pursue a loss of consortium claim in Georgia?
Theoretically, a loss of consortium claim can be pursued separately from the other spouse’s personal injury claim.
But, this is rare.
Loss of consortium claims are derivative of the other spouse’s personal injury claim, but they have different statutes of limitations. So, it’s conceivable that a loss of consortium claim can be pursued separately from a personal injury claim in rare scenarios.
References:
Stapleton v. Palmore, 250 Ga. 259, 260 (1982);
Johnson v. Yeager, 188 Ga. App. 588, 589 (1988);
Winkles v. Thomas, 164 Ga. App. 715, 715 (1982);
Rutland v. Fuels, Inc., 135 Ga. App. 143, 143 (1975).
16) Can I pursue a loss of consortium claim, even if my injured spouse does not pursue their personal injury claim?
Punitive damages are available for loss of consortium claims in Georgia.
But, the underlying facts must meet the high burden to allow for a punitive damage claim to go to trial.
References:
J.B. Hunt Transp., Inc. v. Bentley, 207 Ga. App. 250 (1992).
17) Can I recover for punitive damages for loss of consortium?
18) What is the history of Georgia's loss of consortium claim?
Historically, only the husband had a right to claim for compensation – or damages – for the loss of the services and intimacy of his wife.
This reflected the outdated view that a woman was the property of a man, and that the wife’s injuries are “too remote and indirect to permit her to recover.”
A woman’s right to a loss of consortium claim was not first recognized in the United States until 1950, by the United States Court of Appeals for the District of Columbia. But, no state court had yet adopted this view.
Georgia's Court of Appeals was the first state court to adopt the United States Court of Appeal’s decision in 1953, holding:
"It is as much the duty of this court to restore a right which has been erroneously withheld by judicial opinion as it is to recognize it properly in the first instance. It is appropriate in this day, when human rights are on the tongues and in the hearts and minds of men, women, and children everywhere, and when the very existence of civilization depends on whether fundamental human rights shall survive, for this court to recognize and enforce this right of a wife, a right based on the sacred relationship of marriage and home."
References:
Hitaffer v. Argonne Co., 183 F.2d 811, 819 (D.C.Cir.1950)
Brown v. Georgia-Tennessee Coaches, Inc., 88 Ga. App. 519, 532–33 (1953);
Timms v. Verson Allsteel Press Co., 520 F. Supp. 1147, 1149 (N.D. Ga. 1981);
Henderson v. Hercules, Inc., 253 Ga. 685, 685 (1985);
McDade v. West, 80 Ga. App. 481, 483–84 (1949).
19) How are loss of consortium damages compensated under a car insurance policy?
Loss of consortium claims are compensable under the “per person” limits in a car insurance policy.
Car insurance policies contain bodily injury limits based on “per person” and “per incident.” For instance, Georgia law requires a minimum car insurance liability coverage of $25,000/$50,000, which translates to $25,000 per person and $50,000 per collision.
If one spouse is injured in a car accident, then both spouses’ damages would be capped at the individually $25,000 available to the personally injured spouse – they would have decide how to split these damages to compensate for both injuries. In other words, one spouse cannot recover $25,000 for personal injuries while the other spouse recovers for another $25,000 under the “per collision” limits.
One creative plaintiff attempted to make a claim for loss of consortium under the vehicle’s property damage coverage based on the theory that the claim signifies damage done to marital property (since the claim arises from the interference with property rights in a marital relationship). Georgia rejected this theory.
References:
Thompson v. Allstate Ins. Co., 285 Ga. 24, 27 (2009);
Mullinax v. State Farm Mut. Auto. Ins. Co., 303 Ga. App. 76, 78 (2010);
Bartlett v. Am. All. Ins. Co., 206 Ga. App. 252 (1992).