What is Loss of Consortium in Florida Personal Injury Claims?
When a serious accident occurs, the consequences can affect more than the person who was injured. Spouses, children, and parents may also suffer losses when their loved one can no longer provide the same companionship, comfort, or support as before. In these cases, you may be able to file a loss of consortium claim, but what is loss of consortium?
Put simply, it explains how Florida law allows certain family members to seek compensation for the impact an injury has on their relationship. Keep reading to learn more about loss of consortium, how to prove it, and damages you might be entitled to.
What is Loss of Consortium?
In Florida, loss of consortium refers to the harm suffered by a spouse or family member when a loved one is seriously injured due to another’s negligence. In Gates v. Foley, the Florida Supreme Court defined consortium as more than a physical or sexual marital relationship. It includes:
- Companionship and fellowship between spouses
- Emotional support, affection, and comfort
- Cooperation and assistance in everyday married life
- Shared activities and the stability of family life
In other words, consortium represents the intangible benefits of a relationship that are lost when an injury or death permanently affects a person’s ability to be an active member in the family.
Who Can File a Loss of Consortium Claim in Florida?
A loss of consortium claim is separate from the injured person’s personal injury case. Florida law limits who may sue for loss of consortium:
- Spouses
- Only legally married spouses may file on behalf of the injured spouse.
- The marriage must’ve existed before the accident that caused the injury.
- Dependent Children (Loss of Parental Consortium)
- Under Florida Statute 768.0415, if a parent suffers a significant permanent injury leading to permanent total disability, their unmarried dependent child(ren) can recover damages for the permanent loss of the parent’s care, comfort, companionship, and services.
- Parents of Injured Children (Loss of Filial Consortium)
- The Florida Supreme Court has also recognized a parent’s right to recover damages when a child suffers a permanent disability due to negligence. This right mirrors Florida Statute 768.0415, but applies in reverse: a parent may claim for the permanent loss of companionship and society of an injured child.
How Do You Prove a Loss of Consortium Claim?
To prove a loss of consortium claim in Florida, you must prove that the injured person’s condition is so severe that it keeps them from functioning like a healthy individual. Because a consortium claim is derivative of the person’s injury case, it cannot succeed unless the underlying claim is valid. If you can’t prove negligence or fault against the defendant, the loss of consortium claim will fail.
Here’s what you must prove for a successful case:
- The Four Elements of Negligence
- Duty of care
- Breach of that duty
- Causation
- Damages
- Proof of the Relationship
- Legal marriage before the injury occurred
- Proof of dependency as recognized under Florida law (children or parents)
- Qualifying Injury
- Injury must be permanent and serious enough to disrupt normal family life
Evidence can be gathered through expert testimony, medical records, school or work records, and witness statements, to name a few.
Types of Damages Covered by a Loss of Consortium Claim
Loss of consortium damages fall under non-economic damages. Unlike medical bills or lost wages that can be calculated with receipts and pay stubs, consortium damages represent intangible harm.
In addition to consortium, Florida personal injury law often allows recovery for other non-economic damages, including:
- Pain and suffering
- Mental anguish
- Emotional distress
- Reduced quality of life
Is There a Cap on Damages for Loss of Consortium Claims?
Most personal injury claims in Florida do not have caps on non-economic damages, including loss of consortium. The exception is when suing the state or a government agency, as they are protected by sovereign immunity. In those cases, recovery is limited to $200,000 per person and $300,000 per incident under Florida Statute 768.28.
How is Compensation for Loss of Consortium Determined?
As mentioned previously, loss of consortium involves intangible losses, so calculating damages can be difficult and is usually left up to the discretion of judges or juries. They consider factors such as:
- Severity of the injury and long-term effects
- Impact on daily family life
- Strength of the relationship before the injury
- Ages and life expectancies of those involved
- Emotional and psychological impact on the spouse or family member
- Testimony from family, friends, and experts
- Level of care and support provided before the accident
What is the Statute of Limitations for Loss of Consortium Claims?
In Florida, a loss of consortium claim must be filed within two years from the date of the injury. Since the claim is tied to the underlying personal injury case, both must be brought within this time frame. If the claim is not filed before the deadline, the spouse or family member loses the right to seek compensation.
Is There a Downside to Consortium Claims?
Loss of consortium claims can add value to a personal injury case, but they aren’t always the best strategy. Including a spouse as a plaintiff can expose jointly held family assets if the verdict doesn’t go your way, especially if the defense has filed a Proposal for Settlement. In some cases, leaving a spouse off the verdict can add an extra layer of protection.
Adding a consortium claim can also give the defense more room to argue bias since jurors may see a husband or wife testifying in support of their partner as less objective, though the opposition may make that point regardless. On the other hand, one benefit is that filing a consortium claim gives the non-injured spouse the right to attend all court proceedings.
Contact Us for a Free Consultation With Our Gainesville Personal Injury Lawyers
Not every personal injury or wrongful death case will include a loss of consortium claim. Whether it applies depends on the details of the injury and how it has affected the family dynamic.
If you believe you may have a valid claim, our Gainesville personal injury lawyers can review your case, explain your options, and guide you through the process. Contact us today for a free consultation and learn how we can help protect your rights and pursue the compensation your family deserves.
Frequently Asked Questions
Can you file a loss of consortium claim if your spouse was partially at fault for the accident?
Yes, Florida follows a modified comparative negligence system under Florida Statute 768.81. You may still recover damages if your spouse was less than 50% at fault. If they were more than 50% at fault, no damages can be collected.
Can you file a loss of consortium claim on behalf of your children?
Yes. Since children don’t have the legal capacity to file, a parent may file on their behalf if the injury has significantly affected the parent-child relationship. These claims are more intricate than spousal claims, so it’s important to consult a Florida personal injury attorney who’s familiar with this area of the law.
Does loss of consortium survive divorce or separation in Florida?
If a couple is separated but still legally married, the claim isn’t automatically eliminated, although the court may reduce damages based on the condition of the relationship. If a divorce occurs, the right to file for loss of consortium ends.
Sources:
Parental Consortium | The Florida Bar
768.81 Comparative fault. | The Florida Legislature
Mr. Fine was born in New York, New York, and was raised in the northeast, where he studied sociology at Colby College in Waterville, Maine. He then graduated with honors from the University of Florida Levin College of Law in 1976. In law school, he was a member of Phi Kappa Phi Honor Society, was inducted into the Order of the Coif, and graduated in the top 10 percent of his class. Mr. Fine was admitted into the Florida Bar in 1976, the United States District Court for the Middle District of Florida in 1977, the United States District Court for the Northern District of Florida in 1991, and the United States Court of Appeals 11th Circuit in 1982.