Workers seriously hurt or killed in an on-the-job accident in Illinois or Indiana have legal protections under state and federal law that mandate those responsible for the incident bear legal responsibility for what has happened. There are workers’ compensation laws that allow claims to be filed against employers without the worker having to prove up any fault. Personal injury laws, such as negligence, premises liability, and defective product laws, may also be available as legal avenues for justice. Read, Workers’ Compensation and Third-Party Claims for On-the-Job Accidents.
When these accidents are investigated and legal claims are prepared, it is important for injured workers and their loved ones to understand that there may also be legal remedies available to family members and dependents. Of importance here are “loss of consortium” damage claims that can be pursued by the accident victim’s spouse. For more, read: Who Can Claim Damages After a Work Accident in Indiana or Illinois?
What is Loss of Consortium?
Of course, marriages change after an accident where a victim suffers catastrophic bodily injuries. Should the harm prove fatal, the marriage ends. If the injured victim is blessed to have survived the incident, there will still be a tremendous impact to the marriage. The spouse may suffer alongside the accident victim for a very long time.
Legally, this harm is recognized as the “loss of consortium.” It has been defined as “…[t]he reasonable value of the society, companionship and sexual relationship with his wife of which he has been deprived [and the society, companionship and sexual relationship with his wife of which he is reasonably certain to be deprived in the future].” Illinois Pattern Jury Charge Instructions 32.04, citing Brown v. Metzger, 104 Ill.2d 30, 470 N.E.2d 302, 83 Ill.Dec. 344 (1984).
Evidence of Loss of Consortium
Whenever the spouse is seeking loss of consortium damages in the future, the spouse must be able to provide authenticated and admissible evidence that “… such loss is reasonably certain to occur.”
Proof can be provided as witness testimony or documentary evidence (e.g., paperwork like cards, letters; photographs; vacation travel invoices; texts and other social media). Experts may be needed to opine on the extent of the victim’s injuries and their permanent impact upon the marital relationship.
The subject matter of these causes of action necessitates delving into extremely personal things by definition. The spouse must be prepared for defense intrusions into sensitive and private matters involving their sexual relationship before and after the accident.
The spouse must also be prepared for evidence that seeks to refute the claimed loss of consortium damages. For example, there is case law precedent that holds an injured spouse who had an extramarital sexual relationship that was known to the spouse-claimant may result in a lower calculation of damages for loss of consortium. Illinois Pattern Jury Charge Instructions 32.04, citing Countryman v. County of Winnebago, 135 Ill. App. 3d 384 (1985).
Who Can File a Loss of Consortium Damages Claim?
Either a husband or a wife can file for loss of consortium damages. However, to establish their right to pursue this legal claim for damages, the spouse must be able to prove their “standing to sue.” Only those who can prove they were (1) legally married (2) at the time of the accident will be able to survive a defendant’s challenge to their standing.
Those who have lived together for years, but who are not legally married, may not be able to succeed in a loss of consortium damages claim. The law protects spouses here, not romantic partners no matter how long the relationship or how serious the commitment. Even non-married partners who have had children together may not be eligible for loss of consortium damages. Engagements will not be sufficient, as well.
Why? As the Illinois Supreme Court explained in Brown, this is a distinct legal cause of action (a “tort”) created in the law to recognize injury to the personal relationship established by the marriage contract. It is a separate claim to be made by the spouse and proceeds independently of the accident victim’s legal claims. See, Comment to Illinois Pattern Jury Charge Instruction 32.04.
Loss of Consortium: Workers’ Compensation; Personal Injury; and Wrongful Death Claims
When the accident victim survives, the spouse can proceed with claims for loss of consortium based upon that injury. Should an accident take the life of its victim, then the surviving spouse will have damage claims available to them under the appropriate wrongful death laws that apply to the case. Loss of consortium is a recognized damage claim that can be recovered after a victim’s wrongful death.
For more on wrongful death claims, read: Wrongful Death Damages After Fatal Work Accidents in Illinois or Indiana and Fatal Accidents and Wrongful Death Lawsuits in Indiana and Illinois.
However, spouses may not be able to seek loss of consortium damages as part of a workers’ compensation claim filed under the injured worker’s employers’ policy. Workers’ compensation laws limit their coverage to specific, definable claims such as lost wages and medical expenses without the requirement of proving fault.
For more on workers’ compensation claims, read: The Two Main Differences Between Workers Compensation and Personal Injury Claims for Accident Victims in Indiana and Illinois.
Spouse Loss of Consortium Claims after a Serious or Deadly Accident in Indiana or Illinois
Absent a successful settlement negotiation with all parties with legal liability for the victim’s accident, these spousal claims will proceed for evaluation by a judge or jury. There will be a determination of the total money amount that represents justice to the spouse for loss of consortium involving all sorts of things, such as:
- Loss of services provided by the victim (e.g., childcare or lawn services)
- Psychological care and treatment required in the aftermath of the spouse’s accident
- Lost companionship of the husband or wife
- Lost advice or protection provided by the husband or wife
- Lost intimacy with husband or wife.
Loss of consortium claims can be complex to define and complicated to prove. The total amount of damages tallied by the judge or jury can be high, particularly in the face of a tragically lost life.
For more, read:
- Catastrophic Injuries in an Accident: Damages for the Loss of a Normal Life
- Loss of Earning Capacity Damages After Accident in Illinois or Indiana
- What are Legal Damages After a Work-Related Accident in Indiana or Illinois?
The horrible reality of a spouse being severely hurt or killed in an accident, particularly on the job, impacts a wife or husband in countless ways. The hurt is instantaneous, and the harm can last for many years. Spouses do have a right to seek justice in these situations. Please be careful out there!
