The effects of a catastrophic car accident go beyond the person who is injured, deeply impacting his or her family members. If your loved one was involved in an accident that resulted from another driver’s negligence, you could be eligible to pursue a loss of consortium claim. By working with an auto accident attorney in Houston, TX, you can learn how to build your case and answer the defense’s counter-arguments.
What Does “Loss of Consortium” Mean?
“Loss of consortium” is a type of damage that is experienced by the family members of a deceased or injured person. It refers to meaningful aspects of a spousal, parental, or filial relationship such as companionship, emotional support, protection, love, and care. In Texas, loss of consortium claims are available to spouses, parents, and children but not siblings or extended family members.
By allowing derivative claims like loss of consortium, Texas family law acknowledges that relatives have a right to pursue their own compensation cases in the event of a tragic accident. Other types of derivative claims include:
- Wrongful death claims
- Bystander claims
- Loss of inheritance claims
- Loss of services claims
- Survival causes of action
Loss of Consortium for Spouses
As a spouse, the damages you might incur after your marital partner is involved in an accident include a diminishment of the romantic, economic, and physical aspects of your relationship. The inability to continue sexual relations can factor into your claim in applicable situations, as can the loss of the potential to have children in the future.
Loss of Consortium for Children
If your parent was killed or severely injured in an accident, you may be able to claim the loss of their guidance, love, affection, and support. When determining how to value a loss of consortium claim for a child, courts consider a number of factors including:
- The age of the child
- The emotional and physical well-being of the child
- How badly the parent was injured and how the injury affects the parental relationship
- The existence or non-existence of other sources of consortium that are available to the child
- The strength of the emotional bond between the parent and the child
Loss of Consortium for Parents
States vary according to the laws pertaining to loss of consortium for parents, also referred to as “filial consortium damages.” In Texas, parents are only allowed to pursue loss of consortium in the event of a fatality. Severe injuries are not grounds for this type of claim, even if the child is permanently disabled. If your child was injured in a car crash, a personal injury attorney can give you information on other ways for your family to pursue compensation.
Filial consortium refers to the love, companionship, and affection a child is able to give his or her parents. In Texas, parents are sometimes allowed to receive compensation for the loss of unborn children as well as children who have already been born.
Proving Loss of Consortium
In a loss of consortium case, the claimant is allowed to pursue both present and future damages. Spousal, parental and filial relationships are life-long, meaning that the future damages could be considerable. In any personal injury case, strict rules outline what types of evidence are acceptable and how they must be presented in a legal context.
Evidence of Negligence
Loss of consortium claims are derivative of a personal injury claim, meaning that winning a payout depends on presenting evidence of the other driver’s negligence. A claimant might argue that the other driver was distracted or intoxicated or that the rules of the road were not followed. For example, the other driver may have failed to use his or her turn signal.
Videos and photos from the scene of the accident are often presented in court. Witness testimonies and physical evidence are also acceptable. For example, if your relative’s car was hit on the right side and the other driver’s car shows damage to the front, a personal injury attorney might argue that the other driver took an illegal left turn. Any available surveillance footage or witness statements could support the attorney’s argument even further.
Evidence of a Valid Relationship
In order to pursue loss of consortium, you must be able to show that you had a valid relationship with the injured or deceased at the time of the crash. A marriage license or a birth record can demonstrate the nature of the relationship, while the testimony of other family members, friends, or neighbors can attest to the value of the familial bond.
Medical evidence, such as diagnostic results and records of medical treatments, is necessary to prove that your relative’s injuries were serious enough to affect his or her ability to provide consortium. Medical evidence is especially important in cases where the person claiming loss of consortium cites an inability to have children with his or her spouse.
Anticipating Defense Tactics
In addition to building a case for your loss of consortium claim, your attorney can help you anticipate arguments that are available to the defense. Here are two examples of the kinds of counter-arguments you might encounter:
The Injured or Deceased Relative Was Partly At-Fault
The value of a loss of consortium claim is linked to the outcome of the personal injury claim that precedes it. If your relative is found to be partly at fault for the accident, his or her payout will be reduced according to the percentage of blame he or she shares with the other driver. Accordingly, the value of any loss of consortium claims will be reduced by the same percentage.
The Relationship Between the Claimant and Their Relative Was Damaged
In some loss of consortium cases, the defense has argued that a parent-child relationship was dysfunctional or that a spousal relationship was on rocky terms. In the case of spouses seeking loss of consortium, any evidence of marital discord can be used against the claimant.
To disprove such counter-claims, your attorney may bring in individuals who understand the true nature of the relationship between you and your spouse, parent, or child. Statements that verify the strength of the relationship between you and the injured or deceased party can work against the defense.
How to Pursue a Loss of Consortium Claim
When seeking damages for loss of consortium, it is important to work with an attorney who understands the complexity of personal injury law. Loss of consortium issues only arise in the case of severe injury or wrongful death cases, both of which tend to be expensive for insurance companies. The more costly the claim, the more likely the insurance company is to fight back.
A qualified attorney will understand how to demonstrate your grounds for loss of consortium. You should choose an attorney with good communication skills who can fully understand the value of your relationship with the injured or deceased party. Once you have chosen an attorney, he or she can provide valuable information on how to negotiate with the insurance company and pursue damages in court, if necessary.
Find an Auto Accident Attorney in Houston, TX
While financial compensation can never equal the emotional value of the relationship you had with your spouse, parent, or child, it is your right to hold a negligent party accountable for the damage that was done. To get in touch with an auto accident attorney in Houston, TX, contact Abraham, Watkins, Nichols, Agosto, Aziz & Stogner.