We know that the law often changes or, as academics are fond of saying, evolves. Yes, over the years more claims have been permitted by the highest court of Massachusetts, the Supreme Judicial Court, and the Massachusetts state legislature. Of course, sometimes the pendulum swings the other way, that is against the rights of victims. However, let’s look at the broadening of rights, not the curtailment. One area where the law seems to show its enlightenment is where it permits the assertion of claims for loss of consortium.
For decades now, spouses have been able to bring claims when the injured spouse has suffered physical and emotional injury. The spouse who is not physically injured, the one not involved in the accident, can assert a separate and independent claim for loss of consortium. Then, in 1980, consortium claims were broadened even further to allow children to assert claims for the loss of consortium of injured parents. Ferriter, et al v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507 (1980). Eight years later, by statute, the flip side was permitted, meaning that parents can assert claims for loss of consortium of their children. MGL c. 231, 85X. According to that statute, “the parents of a minor child or an adult child who is dependent on his parents for support shall have a cause of action for loss of consortium of the child who has been seriously injured against any person who is legally responsible for causing such injury.”
What about the nature of consortium claims? As stated, it is important to know that they are deemed separate claims, even though they arise from someone else’s injury. The fact that they are deemed separate and independent claims has very important implications when a case is tried or negotiated. If there is comparative negligence on the injured party, that comparative negligence cannot be imputed to the people who assert the consortium claims. Feltch, et al v. General Rental Co., et al, 383 Mass. 603 (1981). Accordingly, the child of an injured worker would not have that injured worker’s comparative negligence, if any, imputed to them. Their award would not be deducted by the amount of their father or mother’s negligence. Similarly, between spouses, the injured spouse’s comparative negligence will not be imputed to the spouse who asserts a claim for loss of consortium. The whole concept behind that is the notion that it is an independent claim. Therefore it is unfair to “tag” or attribute this negligence to the non-physically injured claimants.
Now let’s talk about the nature of consortium claims among spouses. Of course it includes marital relations, but it includes much more than that: specifically comfort, support, society, and assistance. A good consortium presentation will describe the nature of the support and the other aspects of consortium that had been given pre-accident by the injured party to the non-physically injured party. This applies to spousal as well as to other consortium claims. Thus, the attorney needs to look at the comfort, support, society and assistance given by injured spouse to the other spouse; by the parent to the child; or by the child to the parent. Thus we ask: Describe, giving actual examples, the support and satisfaction you, the consortium claimant, got from the injured parent? What was provided to the wife/husband from the other spouse, and not just materially? How has the family unit been impacted or adversely affected by the accident? This must be investigated, developed and asserted as part of a good consortium claim.
Some legal niceties come into play. The child must have been born at the time the cause of action arose, i.e. when the worker got hurt. Also, there has to have been a marriage in effect at the time the cause of action arose, i.e. when the injured worker got hurt.
Once you have established that there is a valid consortium claim, it is certainly worth trying to sit down with your clients and their relatives to learn how the consortium has really been affected. The attorney will learn a lot to enhance the consortium claim and even to enhance the damages part of the injured party’s claim. Properly developed, a consortium claim of any configuration – husband, wife, parent, child – can be a worthwhile and important aspect of the overall claim.
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