A’s wife was killed by a drunk driver. The husband is contemplating legal action against the driver for loss of marital consortium. Based on this vignette, several decisions would need to be made.
- Identity of the driver (individual, corporate employee, government employee).
- Proper forum (state or federal court)
- Statute of limitation, tort reform limits, sovereign immunity issues, etc.
- Elements of the tort
- Evidentiary issues
COA simplifies the process of working through each of these issues by providing concrete examples.
For A to initiate a lawsuit for loss of marital consortium, COA 2d:
- States what he must prove to succeed such as the loss of marital benefits caused by the wrongful conduct of the defendant.
- Contains defenses that may defeat the husband’s claim, for example, that the loss was not compensable or that there was no valid marriage in existence at the time of the loss because the husband had a prior marriage that was not properly dissolved, Domany v. Otis Elevator Company, 369 F.2d 604 (6th Cir. 1966).
- Contains guidance on the proper plaintiff, for example, the child cannot pursue this claim if the husband chooses to discontinue the suit.
- Contains critical guidance on forum selection and related issues of the statute of limitation and the nature of the action itself in a particular jurisdiction.
- Detail guidance is offered on different jurisdictions' requirements.
- Closely related to the forum issue is the statute of limitation. In some cases, the statute of limitation for the underlying tort is different from that of loss of consortium.
- Whether loss of consortium is an independent cause of action separate from the underlying tort.
Example 1. Except as otherwise provided in this article, actions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year after the right of action accrues, and except for actions for injuries to the person involving loss of consortium, which shall be brought within four years after the right of action accrues. Ga. Code § 9-3-33.
Example 2. “With respect to the loss of consortium claim we find that Mrs. Piper's failure to file her claim with the County or join in Mr. Piper's claim, as required by section 768.28(6), Florida Statutes (1981) warrants its dismissal. [Internal citations omitted]. Compliance with 768.28(6) is clearly a condition precedent to maintaining a suit.” Orange County v. Piper, 523 So. 2d 196, 197-98 (Fla. Dist. Ct. App. 1988)
- Contains guidance on the nature of the relief of the loss of marital consortium.
- This is supplemented by an annotated research guide on applicable law.
- This is further supplemented by several practice guides (e.g. statutory or contractual limitations, measure of damages, initiating legal action against a state entity, etc.) about the nature of the particular cause of action.
- Sample list of damages awarded in the past for similar causes of action in different states.
- For example, in Schwamb v. Delta Air Lines, Inc., 516 So. 2d 452, 467 (La. Ct. App. 1988), the Court noted “Mrs. Schwamb further testified that Mr. Schwamb has become grouchy and unable or unwilling to perform the many small tasks that tend to produce a happy marriage.” “The jury found that Delta was solely liable for Schwamb's injuries and awarded … $35,000 for Mrs. Schwamb's loss of consortium.” Id., 468.
- Practice Checklists. These are an inventory of items that are germane to both the plaintiff’s and the defendant's case. Examples are the nature of the marriage (statutory or common law), the date the marriage was contracted, the status of the marriage at the time of death, services provided by the deceased to the plaintiff, the defendant (individual, corporate, government), etc.
- Discovery Focus. This guides both plaintiff and defendant on deposition and interrogatory, request for admission, and request for production of documents.
- Appendix.
- A real judgment of a court is provided in the appendix. This, in a sense, sums up all the requirements for the loss of marital consortium cause of action. It provides insight into the judicial (process) component of the action. This will help both plaintiff and defendant to better understand how a judge would review and evaluate the lawsuit.
- A sample complaint that can be used to initiate a loss of consortium action is also included for the guidance of the plaintiff.
- General Research Guide. This guide brings together a comprehensive list of secondary resources on the loss of marital consortium.
- Table of Cases. The table contains the primary cases from different jurisdictions, different Court of Appeals Circuits, and the US Supreme Court. For this reason, it is easy to limit the focus of the research.
