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In many cases, it is not only the accident victim themselves who suffer some type of damage from the negligence of another.
There is often a spouse or other family members who also sustain their own damages through the harm that the accident victim suffered. They may have been relying on the accident victim to perform a certain role in their lives (excluding the role of provider, which is already compensated in damages.)
The other functions that the accident victim performed that may be lost because of the accident can be compensated in a loss of consortium case. The legal theory is that spouses are so inextricably bound together that an injury to one will be an injury to the other.
What May Be Compensated in a Loss of Consortium Claim?
The accident victim may be relied on for both the physical and emotional support that they provide to others. This support can include the following:
- Lost counsel
- Lost emotional support
- Lost financial support
- Lost household services
- Lost care If the accident victim cares for a dependent or a disabled person in the home
- Lost comfort
Loss of Consortium Also Compensates for the Loss of a Physical Relationship Between Spouses
Another prime area for a loss of consortium claim is the physical relationship between two partners. This area is an intensely personal topic that will require the claimant to discuss an area that may make them uncomfortable. Nonetheless, it is necessary to discuss the relationship before the accident to quantify the damages.
Note that loss of consortium does not necessarily mean that the spouse has completely lost all of the areas described above. Even a reduction in the quality of services provided by the spouse may be grounds for a loss of consortium claim.
South Carolina Loss of Consortium Claims Are Filed by Spouses
South Carolina is different from many other states when it comes to loss of consortium claims. In this jurisdiction, only the spouse can claim these damages. Even though children may suffer similar harm to the spouse, a South Carolina Supreme Court case restricts their ability to claim loss of consortium damages. However, parents may claim loss of consortium damages when their child has suffered an injury in an accident.
Loss of consortium claims do not include those filed by unmarried domestic partners. They are limited to those filed by spouses. The section of the South Carolina code that authorizes these lawsuits specifically is entitled “Loss of companionship of spouse.” As such, loss of consortium claims will only cover damages that are sustained during the marriage, as opposed to ones from before the marriage.
A Loss of Consortium Case Belongs to the Spouse and Is a Separate Case
Technically, a loss of consortium claim is a separate legal case, but it is usually heard as part of the main case against the defendant. The loss of consortium claim is part and parcel of the negligence action against the defendant. It is one of the damages that the victim will be entitled to if they can prove the defendant’s negligence.
Nonetheless, South Carolina courts consider a loss of consortium claim to be an independent legal action filed by someone else, as opposed to a derivative action of the main claim filed by the accident victim. This distinction is important when there are policy limits imposed by auto insurance companies.
Disputes About Loss of Consortium Case Value
Loss of consortium claims can be difficult because of the challenge of valuing the service that is lost by the claimant. South Carolina does have caps on loss of consortium awards. However, within that context, there are definite challenges that a court may face in making an award.
In fact, a 1941 case decided by the South Carolina Supreme Court stated the following about loss of Consortium damages:
“The companionship and society of a wife are not articles of commerce. They cannot be weighed or measured. They are not bought and sold, and no expert is competent to testify to their value. The consideration upon which they are bestowed is not pecuniary.”
Nonetheless, weighing and measuring the companionship of a spouse is exactly what a court is exactly what the insurance company is called to do in this case. You will need an experienced personal injury attorney to tell the story of the relationship to show exactly what the spouse lost when their spouse suffered an injury in an accident.
A loss of consortium claim often means that you are taking on the insurance company and contentious settlement negotiations. Your lawyer will help place a value on the losses, although this number will inherently be subjective. You can be assured that the insurance company will contest whatever you put forward and argue either that the spouse deserves nothing or that they deserve much less in damages.
Contact a Charleston Personal Injury Lawyer Today
Trey Harrell Auto Accident and Personal Injury Attorney can handle the complex parts of your personal injury case, taking on a reluctant insurance company that is pulling out all the stops to cost you money. We put pressure on the insurance company to respect your legal rights and not shortchange you for your accident injuries. To schedule an initial consultation, you can send us a message online or call us at (843) 636-TREY today.
Loss of Consortium Claim FAQs
How do I prove that someone is legally responsible for the accident?
You must show that the other driver was negligent, meaning that they acted unreasonably under the circumstances.
Is the amount that I can recover in a loss of consortium claim unlimited?
No. South Carolina law places limits on the amount of a loss of consortium award because they are not economic or financial in nature.
Can the same attorney represent both spouses in a loss of consortium case?
Yes. Even though they are two distinct cases, there is nothing to keep both spouses from using the same attorney for their personal injury case.