WHAT IS IT? CAN I BRING A CLAIM AS THE NON-PHYSICALL INJURED HUSBAND OR PARENT OF AN INJURED CHILD?
WHAT IS LOSS OF CONSORTIUM IN UTAH?
Loss of consortium is where someone else is significantly physically hurt that is close to you, but you are not physically hurt. Yet that person’s physical loss impacts your relationship with them.
Example. Marital Loss of Consortium. Wife is severely injured in a Utah car collision which ends her ability to engage in sexual relations with her husband. Husband would have a claim for loss of consortium.
Example. Filial / Parental Consortium. Child is severely injury in a Utah car accident on I-15. Father’s relationship with child strained and significantly impaired causing father damages. Father has a claim for loss of consortium.
Example. Domestic Partner. Domestic partner, lawfully married, is killed in a Utah 18 wheeler accident. Non-injured domestic partner will have a wrongful death claim and a loss of consortium claim.
Example. Common law marriage. Parties are holding themselves out as a being in a common law marriage under Utah’s common law marriage statute. One spouse is severely injured in a motorcycle accident which impairs the relationship.
COMMON UTAH LOSS OF CONSORTIUM CLAIMS.
Marital relationship strains. Financial issues due to car accident medical bills.
Unable to do activities together. Gardening, hiking, walking, sailing, etc.
Sexual relations constraints.
Loss of companionship and society of the injured spouse or dependent.
Inability to have children. Reproductive injuries.
ELEMENTS OF LOSS OF CONSORTIUM
In Utah, the injured party or plaintiff claiming damages must prove their case. The injured party has the burden of proof by a preponderance of the evidence to prove their loss of consortium claim. Here are the elements of lost consortium:
- There were married (domestic partners, common law marriage) to the physically injured party at the time of the injury/accident.
- The defendant wrongdoer caused the spouse’s injury; and
- The accident damaged the relationship between the injured person and the other person.
WHO CAN CLAIM LOSS OF CONSORTIUM? TYPES.
Filial Parental Consortium. Utah recognizes a claim for loss of filial consortium allowing parents to recover for loss of filial consortium due to tortious injury to a minor child in cases where the injury meets the definition set forth in the Utah spousal consortium statute.
Martial Consortium. The non-physically injured spouse can make a claim for money damages for the relationship being impaired.
Common Law Marriage Consortium / Domestic Partner. Same as marital consortium, except the relationship that is damaged is a domestic partnership or common law marriage.
UTAH STATUTORY LAW ALLOWING FOR LOSS OF CONSORTIUM.
The controlling Utah statute for loss of consortium is Utah Code Ann. 30-2-11 (2021). The Utah loss of consortium statute is found in the divorce code, “Husband and Wife.”
The loss of consortium statute specifically allows for martial consortium, but does not mention filial consortium. The non-physically injured spouse’s claim for money damages is completely derivative of the physical injury’s spouses claim.
The threshold requirement to bring a claim is not just any accident injury to a spouse, but a significant permanent injury to a person that substantially changes that person’s lifestyle and includes the following:
(1) a partial or complete paralysis of one or more of the extremities;
(2) significant disfigurement; or
(3) incapability of the person of performing the types of jobs the person performed before the injury; and
COMMON UTAH ACCIDENTS WHERE YOU CAN CLAIM LOSS OF CONSORTIUM.
Common Utah accident personal injury claims that include loss of consortium include:
(1). Wrongful death claims—car accidents. Passengers and drivers.
(2). Wrongful death claims—motorcycle accidents. Passengers and drivers.
(3). Premises liability case of dangerous conditions on land.
(4). Dog bites.
(5). Pedestrian accidents.
(6). Bicycle accidents.
(7). Moped, Scooter accidents.
(8). Many other less common, explosions, fires, medical malpractice, products liability, etc.
LOSS OF CONSORTIUM DAMAGES. MAKE SURE YOU HIRE A GOOD UTAH PERSONAL INJURY ATTORNEY. SOMEONE WHO IS GOOD IN THE COURTROOM.
The essential basis for loss of consortium damages is money compensation for what was taken, or impaired. If the couple where world class ballroom dancers and can no longer dance, that would be one aspect of their damages. If the marriage ended in substance abuse because the physically injured spouse was addicted to pain medication, that would be another damage, although maybe capped.
HOW TO PROVE LOSS OF CONSORTIUM
Proving loss of consortium claims are hard because you are putting your entire marriage or relationship on the public record. All aspects of your marriage are on public display at the trial, in the case or a deposition. Generally, here are the elements you must prove to have a loss of consortium case in Utah:
(1). There is a valid marriage, domestic relationship or common law marriage.
(2). The person suffered a statutory qualifying injury due to the fault of another party (defendant/tortfeasor).
(3). The spouse of the physically injured person suffered a loss of consortium.
(4). The loss of consortium was caused by the spouse being injured.
HOW IS LOSS OF CONSORTIUM DAMAGES CALCULATED?
There is no rigid formula for calculating lost consortium. The Utah personal injury attorney you select can make a huge difference. Here are some general factors in determining the money damages in a Utah loss of consortium case.
(1). The age of the injured spouse who died.
(2). The age of the physically injured spouse. Age of the non-physically injured spouse? Age of the children or dependents who were injured.
(3). The length of the marriage/domestic partnership/common law marriage. Shorter marriages may have less monetary claims than marriages ended during middle age.
(4). The quality of the relationship between the physical injured party and the person claiming loss of consortium.
STATUTE OF LIMITATIONS FOR LOSS OF CONSORTIUM? SAME AS THE UNDERLYING CASE FOR THE INJURED SPOUSE OR PARENT.
The non-physically injured spouse’s claim for loss of consortium is completely derivative of the physically injured spouse’s claim. If the physically injured spouse’s claims fails, so does the loss of consortium claim.
Although very untested and there is not much law on point, the statute of limitation to bring your loss of consortium claim is the same as the physically injured spouse. If the injury accident causing event was a car accident, it is normally 4 years. A wrongful death claim is much shorter. Intentional torts are also shorter. You should consult with an experienced Utah personal injury attorney.
FREE CONSULTATION for Spouses and the Non-Injured Spouse. (801) 373-6345. Call Utah Personal Injury Attorney Jake Gunter.
30-2-11. Action for consortium due to personal injury.
(1) For purposes of this section:
(a) “injury” or “injured” means a significant permanent injury to a person that substantially changes that person’s lifestyle and includes the following:
(i) a partial or complete paralysis of one or more of the extremities;
(ii) significant disfigurement; or
(iii) incapability of the person of performing the types of jobs the person performed before the injury; and
(b) “spouse” means the legal relationship:
(i) established between a man and a woman as recognized by the laws of this state; and
(ii) existing at the time of the person’s injury.
(2) The spouse of a person injured by a third party on or after May 4, 1997, may maintain an action against the third party to recover for loss of consortium.
(3) A claim for loss of consortium begins on the date of injury to the spouse. The statute of limitations applicable to the injured person shall also apply to the spouse’s claim of loss of consortium.
(4) A claim for the spouse’s loss of consortium shall be:
(a) made at the time the claim of the injured person is made and joinder of actions shall be compulsory; and
(b) subject to the same defenses, limitations, immunities, and provisions applicable to the claims of the injured person.
(5) The spouse’s action for loss of consortium:
(a) shall be derivative from the cause of action existing in behalf of the injured person; and
(b) may not exist in cases where the injured person would not have a cause of action.
(6) Fault of the spouse of the injured person, as well as fault of the injured person, shall be compared with the fault of all other parties, pursuant to Sections 78B-5-817 through 78B-5-823, for purposes of reducing or barring any recovery by the spouse for loss of consortium.
(7) Damages awarded for loss of consortium, when combined with any award to the injured person for general damages, may not exceed any applicable statutory limit on noneconomic damages, including Section 78B-3-410.
(8) Damages awarded for loss of consortium which a governmental entity is required to pay, when combined with any award to the injured person which a governmental entity is required to pay, may not exceed the liability limit for one person in any one occurrence under Title 63G, Chapter 7, Governmental Immunity Act of Utah.
Amended by Chapter 3, 2008 General Session
Amended by Chapter 382, 2008 General Session