Courts have long recognized the rights of husbands to take action for actions or omissions resulting in injury to a wife that deprives the husband of loss of marital services. This is termed “loss of consortium.”
It wasn’t until 1950 women were also granted the right to claim damages for loss of consortium relating to loss of spousal services. Since then, it’s been expanded in some jurisdictions to allow for additional recovery for children and parents – even when the children are no longer minors. A claim for loss of consortium cannot be filed on its own, as it is a derivative action of an underlying claim of injury or death due to negligence.
North Carolina is not one of those states that has yet recognized the rights of other family members, aside from spouses, to claim loss of consortium (i.e., loss of parental guidance or a child’s companionship). Current case law (Nicholson v. Hugh Catham Memorial Hospital, Inc., decided by the state supreme court in 1980) holds that when defendant causes injury to a married claimant, the claimant’s spouse can sue for loss of consortium.
Our Charlotte auto accident lawyers know courts have acknowledged “consortium” is difficult to define, but generally refers to the tangible and intangible benefits of a loving marriage, such as service, companionship, society, affection and sexual gratification.
This is not to say other family members or dependents are not entitled to compensation for loss of a loved one (particularly in a wrongful death action). However, loss of consortium is considered a special kind of damage claim to which, in North Carolina, only spouses are entitled.
However, it’s worth pointing out law is ever-evolving and fluid, and this concept is no exception. Just recently, for example, the Montana Supreme Court expanded its definition of who is an appropriate claimant in a loss of consortium action, allowing the adult child of an injured man to seek damages for loss of parental guidance.
In N. Pac. Ins. Co. v. Stucky, the court was asked to weigh a loss of consortium claim by a young woman who was 18-years-old when her father was seriously injured in a motor vehicle accident. He was hurt when a vehicle headed in the opposite direction on a two-lane highway crossed the center line and struck his truck head-on. At the time, his daughters were 15 and 18.
Despite making strides in recovery following his traumatic brain injury, father continues to suffer difficulty finding certain words. He suffers memory loss, balance issues, visual problems, mood fluctuations, outbursts of anger, physical weakness, cognitive limitations, neuropsychological issues, limited movement, depression, agitation from over-stimulation and even sometimes violence toward family members (where he was never previously violent). He requires constant supervision and assistance. He can no longer drive and requires psychiatric monitoring and intervention. These damages are expected to be permanent, with the level of care needed increasing over time and likely costing more than $4.6 million over the course of his life.
His older daughter had been close to her father, and had to leave for college a week after the crash, with her father still in a coma. During the summer, instead of working internships, etc., she went back to her parents’ home to help her mother care for her father. She eventually dropped out of school due to the stress and fear her mother could not handle her father’s care alone.
She joined her mother and younger sister in a personal injury action that, among other claims, asserted damages for loss of consortium for each. Defendant insurer moved for summary judgment with respect to the 18-year-old daughter’s loss of consortium claim, asserting the state does not recognize such a claim for an adult child of an injured parent. The question was certified to the Montana Supreme Court. Justices disagreed with defendant’s position.
The court found the state does recognize loss of consortium claims by an adult child for an injured parent. In order to successfully bring such a claim, plaintiff has to show:
- Third-party tortiously caused parent to suffer serious, permanent and disabling mental or physical injury compensable under state law;
- Parent’s ultimate condition of impairment is so overwhelming and severe it caused the parent-child relationship to be destroyed or nearly destroyed.
Therefore, plaintiff’s claim for loss of consortium for the “loss” of her father may proceed.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
N. Pac. Ins. Co. v. Stucky, Nov. 13, 2014, Montana Supreme Court
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NC Appeals Court: Child Awarded UM Coverage Under Grandfather’s Policy, Nov. 12, 2014, Charlotte Car Accident Lawyer Blog