Proving Loss of Consortium in Personal Injury Cases in Texas
Car accident litigation can be complicated, making it difficult for victims to obtain fair compensation without the assistance of an experienced and reputable Dallas auto accident attorney. Insurance companies that insure negligent drivers frequently take advantage of victims who are not represented by experienced car accident trial attorneys.
Contact the Law Office of Doug Goyen at (972) 599 4100 to discuss your damages in your case. Talk to a personal injury attorney to see what can be done regarding your case.
Personal injury cases may result in the loss of a relationship with a spouse, parent, or other family member. In some (but not all) cases, Texas law allows for recovery for loss of consortium. To determine whether you have a claim for loss of consortium, you should speak with a Dallas injury lawyer about your situation.
Loss of Consortium: is the loss of society and companionship in interfamilial relationships such as husband and wife, as well as the loss of parents for children. The claim for loss of consortium is made by the non-injured spouse (or family member).
Loss of Consortium is a derivative claim for the injury or death of a family member that causes damages to the other family member who is claiming loss of consortium. Other types of damages that are derivative of a close family member’s death or injury include Wrongful Death, Survival Causes of Action, Loss of inheritance, Loss of services claims, and Bystander claims.WHO IS ALLOWED TO RECOVER FOR LOSS OF CONSORTIUM?
Texas courts have held that spouses, children and parents are allowed to recover for loss of consortium due to the injury or death of their family members.
1) SPOUSES – SPOUSAL CONSORTIUM: Spouses can recover for loss of consortium when the other spouse’s injury was caused by negligence or intentional tort of another party. Reed Tool Co. v. Copelin, 610 S.W.2d 736, 740 (Tex.1980)(intentional tort); Wittlesey v. Miller, 572 S.W.2d 665, 668 (Tex.1978)(negligence).
Spousal loss of consortium concerns emotional and intangible elements of the marriage, including affection, solace, comfort, companionship, society, assistance, and sexual relations. Whittlesey, 572 S.W.2d at 666; Reeder v. Allport, 218 S.W.3d 817, 819 (Tex.App.-Beaumont 2007, no pet.). This is a completely separate case from the claim of the injured spouse. Whittlesey v. Miller, 572 S.W.2d 665 (Tex 1978). No expert testimony was required to determine the value of loss, love, affection, companionship, and society by a jury. Seale v. Winn Exploration Co., 732 S.W.2d 667 (Tex.App.—Corpus Christi 1987, writ denied).
2) CHILDREN – LOSS OF PARENTAL CONSORTIUM: Texas courts have determined that an injury to the familial relationship is compensable. If a parent’s injury is “serious, permanent, and disabling,” a child (both minor and adult) may be able to compensate for their loss. Because the child’s claim is a derivative of the parent’s claim, negligence on the part of the parent reduces the amount of recovery by the percentage of negligence on the part of the parent. In this situation, mental anguish is NOT a recoverable factor for the child.
Loss of parental love, affection, protection, emotional support, services, companionship, care, and society are all examples of damages. The severity of the parent’s injury and its impact on the parent-child relationship, the child’s age, the nature of the child’s relationship with the parent, the child’s emotional and physical characteristics, and the availability of other consortium-giving relationships for that child are all factors considered. Reagan v Vaughn, 804 S.W.2d 463, 467 (Tex. 1990).
A child can recover for loss of consortium when the parent suffered serious, permanent and disabling injury or death. Reagan, 804 S.W.2d at 467 (injury to parent); Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 551 (Tex.1985)(death of parent).
3) PARENTS RECOVERY FOR INJURY OR DEATH OF A CHILD – KNOWN AS FILIAL CONSORTIUM: If the child does not die, no recovery for parents regardless of severity of injury to the child. The Texas Supreme Court ruled in 2003 that a parent cannot recover for loss of consortium due to their child’s injury if the child survives. So, even if a child is in a coma, has severe brain damage, or has been severely altered by paralysis or another serious injury, our Texas Supreme Court has ruled that there is no loss of consortium claim for a parent in Texas. Roberts v. Williamson, 111 S.W.3d 113, 120 (Tex. 2003). Prior to 2003, the Texas Supreme Court indicated that a claim for the parent’s loss of companionship, society, affection, and love had merit (loss of consortium). Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983)(Although the case involved the death of a child, the decision stated that the court approved loss of consortium cases in non-death situations as well). Hall v. Birchfield, 718 S.W.2d 313 (Tex.App.—Texarkana 1986), rev’d on other grounds, 747 S.W.2d 361 (Tex. 1987)(non-death injury to a child).
In 2003 the Texas Legislature amended the Wrongful Death Act to permit lawsuits for the death of an unborn child, effectively overrulling Witty v. American Gen Capital Distribs., 727 S.W.2d 503 (Tex.1987), and its progeny. See Tex. Civ. Prac & Remedy Code sections 71.001, 71.003. Parents suing under the Wrongful Death Act for the death of an unborn child may be able to recover for loss of consortium. See Sanchez, 651 S.W.2d at 254.
NOTE: In personal injury cases, the Texas Supreme Court has made decisions that many believe indicate it has become an activist court. Since the mid 1990s they have consistently overturned long-standing law and principle in a variety of personal injury areas in order to deny injured people (or families of those killed) a day in court and prevent them from recovering from those who caused the injury or death. Personal injury lawyers fight to help injured people keep their rights, and pursue cases where the law allows.
Siblings & Stepparent/Child Relationships: There is no loss of consortium claim in these cases, so if a brother suffers a serious injury, his brother or sister has no claim for loss of consortium as a result of their brother’s injury. Furthermore, in Texas, a step-parent/child relationship is not recognized for loss of consortium claims. The court emphasized that there is typically no legal duty in a step-parent/child relationship. Ford Motor Co. v. Miles, 967 S.W.2d 377 (Tex. 1998). It appears that if a stepparent adopted their stepchild as their own, the outcome would be different and a loss of consortium claim would be permitted.INSURANCE ISSUES
- Workers Comp: Workers Comp: Texas courts have held that, even though Loss of Consortium is a separate claim from the injured spouse, the employer is immune from suit in workers comp situations because the claim is a derivative of the spouse’s injury. Reed Tool Co. v. Copelin, 610 S.W.2d 736 (Tex. 1980).
- Auto Insurance Policy: A claim for loss of consortium is not considered a “bodily injury” under the terms of an automobile insurance policy. McGovern v. Williams, 741 S.W.2d 373 (Tex. 1987).
The plaintiff can recover damages for loss of consortium for both past and future losses. Haskett v. Butts, 83 S.W.3d 213, 216 (Tex.App.-Waco 2002, pet. denied)(awarding damages for both past and future loss of consortium); Wal-Mart Stores v. Ard, 991 S.W.2d 518, 526 (Tex.App.-Beaumont 1999, pet. denied)(awarding both past and future loss of consortium).
The claim for the loss of consortium is derivative of the injured person’s claim. Motor Express, Inc. v. Rodriguez, 925 S.W.2d 638, 640 (Tex. 1996). Loss of consortium is based on the loss off love, affection, protection, emotional support, companionship, care, and society that can occur when a family member is injured. See Reagan v. Vaughn, 804 S.W.2d 463, 467 (Tex. 1990)(loss of parental consortium); Wittlesey v. Miller, 572 S.W.2d 665, 667 (Tex.1978)(loss of spousal consortium). It can be recovered only when the injured person has a physical injury, mental anguish alone is not sufficient. Motor Express, 925 S.W.2d at 640; Browning-Ferris Indus. v. Lieck, 881 S.W.2d 288, 294 (Tex.1994).
Damages for children with injury or death of parent: In determining the amount of damages the jury may consider a) the severity of the injury to the parent and its effect on the parent-child relationship, b) the child’s age and emotional and physical characteristics, and c) whether other consortium-giving relationships are available to the child. Reagan, 804 S.W.2d at 467; Reeder v. Allport, 218 S.W.3d 817, 819 (Tex.App.-Beaumont 2007, no pet.); General Motors Corp. v. Burry, 203 S.W.3d 514, 550 (Tex.App.-Fort Worth 2006, pet. denied).
The lawsuit must specifically state the claim for loss of consortium in Texas – it must be specifically plead. See Tex. R. Civ. P. 56 (special damages must be specifically pleaded).
The assessment of loss of consortium does not require special knowledge – therefore expert testimony is not allowed regarding the value of loss of consortium. See Seale v Winn Expl. Co., 732 S.W.2d 667, 669 (Tex.App.-Corpus Christi 1987, writ denied).DEFENSES TO THE CLAIM OF LOSS OF CONSORTIUM
Defendants are allowed to reduce the amount owed by contributory negligence. Meaning that if the injured person was partially at fault, the amount awarded for loss of consortium will be reduced by the percentage that the injured person contributed to their own injury. Reagan v. Vaughn, 804 S.W.2d 463, 466-67 (Tex.1990).
Texas courts have also allowed evidence of marital discord to be introduced as being relevant to a spouse’s claim for past and future loss of consortium. Pool v. Ford Motor Co., 715 S.W.2d 629, 636 (Tex.1986).
Contact car wreck injury attorney Doug Goyen to discuss your injury case and determine the scope of your claim. The Law Office of Doug Goyen is a Dallas injury lawyer who has extensive experience in all types of damages that you may be able to recover. To discuss your case, please contact us at (972) 599 4100.
If you are looking for a personal injury attorney, call (972) 599 4100. We offer free phone consultations. We also provide a free strategy session. The strategy session includes a summary of your case, legal issues involved, and legal issues we identify as being critical to maximizing the compensation owed.THERE IS NO FEE IF WE DO NOT WIN
You owe us nothing if we are unable to recover. We charge a contingency fee structured to take a percentage of what we recover. As a performance-based contract, the better we do for you, the better we do for ourselves. This aligns our interests in the case with our client’s interests.DIRECTIONS TO OUR OFFICE
Law Office of Doug Goyen
15851 Dallas Pkwy #605
Addison, Texas 75001
(972) 599 4100 phone
(972) 398 2629 fax
Directions to our office: We are on the southbound side of the service road to the Tollway. Stay on the Dallas North Tollway until you come to the Keller Springs exit. Take the Keller Spring exit. Stay on the service road on the southbound side and go just past Keller Springs. Our office is the 2nd building south of Keller Springs, located on the service road to the North Dallas Tollway in the Madison Business Center on the 6th floor.
By Doug Goyen, firstname.lastname@example.org
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