As personal injury attorneys in Rock Hill, South Carolina, the Lewis Law Firm often counsels clients regarding consortium claims. Most states permit spouses or family members of the injured person to recover damages for loss of consortium against the defendant in a personal injury case. Loss of consortium is meant to compensate the spouse or family member of a person who has been injured or killed because of the negligence or otherwise wrongful act of the defendant. In this article, we will explain the loss of consortium, how the loss is calculated, who can bring a loss of consortium claim, and what to consider before filing a loss of consortium claim in South Carolina.
WHAT IS LOSS OF CONSORTIUM IN SOUTH CAROLINA?
Loss of consortium is a claim for damages suffered by the spouse or family member of a person who has been injured or killed as a result of the defendant’s negligent or intentional, or otherwise wrongful acts. But what are those damages? The concept is that, as a result of the defendant’s actions, the person who was injured or killed cannot provide his or her spouse or family member with the same love, affection, companionship, comfort, society, or sexual relations that were provided before the accident. Thus, the spouse or family member of the person injured has a claim against the third party for those losses.
Loss of consortium damages usually falls into one of three categories:
- Damage for loss of services. Loss of services includes the reasonable value of the chores and other work the spouse did around the house. It may include everything from mowing the lawn to doing the dishes to cleaning up after the pets.
- Damages for loss of support. Loss of support is the support that would have been received had the accident or death not occurred.
- Damages for loss of quality in the marital relationship. This includes things like providing affection and emotional support.
All three kinds of damages can be included when calculating an appropriate amount to repay the injured plaintiff’s spouse for loss of consortium.
HOW IS THE LOSS OF CONSORTIUM CALCULATED IN SOUTH CAROLINA?
Loss of consortium is a type of harm that falls under the category of general damages. General damages are non-economic damages, meaning they are losses for which money is only a rough substitute.
Other examples of general damages include:
- Physical pain and suffering. This the pain of the plaintiff’s actual physical injuries. It includes not just the pain and discomfort that the claimant has endured to date, but also the detrimental effects that he or she is likely to suffer in the future as a result of the defendant’s negligence.
- Humiliation and embarrassment. The act of embarrassing someone in the eyes of other people can be a civil offense if the victim experiences negative effects on his personal, financial, or physical state. Public humiliation is often related to defamation or the act of another person saying or writing something that hurts someone’s reputation.
- Emotional distress. Emotional distress is a state of mental suffering caused by extreme experience. Mental suffering may include issues such as anxiety, panic, self-guilt, suicidal thoughts, and depression. Emotional distress is typically given to a person who has suffered physical or mental harm that resulted from an intentional or accidental injury.
- Loss of reputation. The most obvious negative consequence that a defamatory statement can cause is harm to your personal and professional reputation.
- Loss of society and companionship. Typically, this type of award is left to the discretion of the judge or jury. However, since this type of damage is difficult to quantify, you will likely have to retain an expert to provide a more precise monetary value for a loss of consortium claim.
South Carolina law is rather clear on Punitive damage awards:
SECTION 15-32-530. Awards not to exceed certain limits; Revenue and Fiscal Affairs Office to calculate adjustments to maximum awards; publication in State Register.
(A)…. an award of punitive damages may not exceed the greater of three times the amount of compensatory damages awarded to each claimant entitled thereto or the sum of five hundred thousand dollars.
(C) However, when the trial court determines one of the following applies, there shall be no cap on punitive damages:
(1) at the time of injury the defendant had an intent to harm and determines that the defendant’s conduct did, in fact, harm the claimant; or
(2) the defendant has pled guilty to or been convicted of a felony arising out of the same act or course of conduct complained of by the plaintiff and that act or course of conduct is a proximate cause of the plaintiff’s damages; or
(3) the defendant acted or failed to act while under the influence of alcohol, drugs, other than lawfully prescribed drugs administered in accordance with a prescription, or any intentionally consumed glue, aerosol, or other toxic vapor to the degree that the defendant’s judgment is substantially impaired.
WHO CAN BRING A LOSS OF CONSORTIUM CLAIM IN SOUTH CAROLINA?
Spouses and Partners. Historically, only spouses could bring a claim for loss of consortium. Many states, however, have recently relaxed this requirement and permit committed partners or same-sex couples to file a lawsuit alleging loss of consortium. The rules are different in each state.
Children and Parents. Some states also permit a child or parent to file a loss of consortium claim. In such a circumstance, the child or parent would argue that his or her injured parent or child is no longer able to provide the same level of care, nurturing, and affection as he or she provided prior to the injury. In this situation, the child or parent would have to show that the parent/child relationship was irrevocably altered by the physical injury.
Limitations on Loss of Consortium. Your loss of consortium claim may be limited by your state’s laws or by an insurance policy if you are making a claim.
Legal Limitations. Each state has its own limitations on the availability of loss of consortium claims. In most jurisdictions, for example, in order to bring a claim for loss of consortium, you will need to show that a valid marriage exists. So, if the couple divorced prior to the trial, the number of damages awarded will be negatively affected. Other states, as discussed above, may allow same-sex couples to bring loss of consortium claims, even in states where same-sex marriage is prohibited.
Insurance Policy Limitations. Most liability policies include “single injury” limitations. This means that there is a cap on the amount covered by the insurance company per accident. In order to determine whether or not there is a policy limit, you will need to read the insurance policy. Unless the defendant is wealthy or has some significant assets, it is usually not possible to collect more compensation than the insurance policy allows.
WHAT SHOULD I CONSIDER BEFORE MAKING A LOSS OF CONSORTIUM CLAIM IN SOUTH CAROLINA?
By bringing a loss of consortium claim, the private and intimate aspects of your marriage will be put at issue. So, you should consider whether you are willing to withstand the rigorous questioning during deposition and trial that the defense attorney will likely bring. If the marriage suffered through any hardships or tribulations prior to the injury such as infidelity, separation, criminal charges, or abuse, the circumstances surrounding those problems will likely be discussed ad nauseam in front of the judge and jury and will be a part of the public record.
It is imperative that you contact a skilled personal injury lawyer to help you with the loss of consortium claim. The attorneys at the Lewis Law Firm has the experience needed for a successful outcome. Allow our attorneys to give you the representation you deserve. Contact the Lewis Law Firm today.