Loss of Consortium Claims

Many personal injury complaints contain the standard “loss of consortium” claim. What does this claim entail in California? One does not have standing to pursue a loss of consortium claim unless his or her spouse also has an actionable personal injury claim. (Mealy v. B-Mobile, Inc. (2011) 195 Cal.App.4th 1218, 1223.) As such, if the injured spouse’s lawsuit fails, or is otherwise dismissed (voluntarily or involuntarily), the loss of consortium claim falls by the wayside. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746.)

Provided the underlying personal injury claim is actionable, the loss of consortium plaintiff must still prove she was lawfully married to the injured spouse at the time of the incident injury. (Vanhooser v. Sup. Ct. (2012) 206 Cal.App.4th 921, 927-928.) A loss of consortium claim is nevertheless valid where the injury from a pre-martial incident does not become discoverable until after marriage occurs. (Leonard v. John Crane, Inc. (2012) 206 Cal.App.4th 1274, 1290.)

Marital status aside, the loss of consortium plaintiff must still establish: “[(1)] a tortious injury to the plaintiff’s spouse; [(2)] loss of consortium suffered by the plaintiff; and [(3)] the loss was proximately caused by the defendant’s act.” (Vanhooser v. Sup. Ct., supra, 206 Cal.App.4th 921, at 927 (internal citations and quotation marks omitted).) The term “consortium” encompasses noneconomic aspects of marriage, such as comfort, companionship, sexual relations, affection, and moral support. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 793, fn. 1.) Consortium does not include anything economic; not lost earnings or even the reasonable value of nursing or caregiver services provided by a spouse. (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 409.)

In light of the above, it is well advised to explore a loss of consortium plaintiff’s spousal relationship at length via deposition and written discovery. One should explore the quality of the relationship before and after the alleged injury incident. Quality includes, but is not limited to, the non-economic categories indicated above. Be sure to also investigate whether there were any communication problems or other family issues that preceded the incident; the frequency of pre-incident arguments versus post-incident arguments; instances of infidelity; and the full spectrum and frequency of activities the couple participated in together before the incident, which no longer occur. The more information one is able to uncover in this regard, the more likely one will be to limit general damages for a loss of consortium claim.

ABOUT THE AUTHOR: Emily Straub is an associate at Tyson & Mendes LLP. She specializes in personal injury, employment, professional liability, and business litigation. Contact Emily at (858) 263-4111 or