Developing Damages – Loss of Consortium Claim
Portland, Bangor, Lewiston - Maine
Over time, consortium has grown from "a union of fortunes" to "reciprocal rights inherent in the marital relationship of husband and wife...", from being claimed only by the husband to including married woman being able to claim for the loss of their husband's consortium.
According to Black's Law Dictionary, the word "consortium" as used in the civil law meant "a union of fortunes." Black's Law Dictionary at 408 (3d ed.). Over time, this quaint concept was narrowed to the more specialized meaning that we recognize today, when consortium comprises the "reciprocal rights inherent in the marital relationship of husband and wife..."Poirier v. U.S, 745 F.Supp. 23, 31-32 (D.Me.1990). The purpose of this seminar is to explore the nature and extent of consortium rights so that you can maximize recovery for loss of consortium.
II. Nature and History of Consortium
As one commentator has observed, '[t]he concept of allowing recovery for loss of consortium was not born of an enlightened desire to establish legal protection for important family relationships, but rather as a means of compensating the head of a household for the loss of services of his subordinates. The man's relationship to his wife and children was compared to that of a master to his servants." Comment, "Who Should Recover for Loss of Consortium?" , 35 Me.L.Rev. 295, 297 (1983). By the mid- to late 20th century, however, consortium had come to be defined under Maine law as follows: '"Consortium," as a general description, represents reciprocal rights inherent in the marital relationship of husband and wife, including such undefined elements as comfort, companionship, and commitment to the needs of each other.'[citation omitted]. 'It "embraces love, companionship, affection, society, sexual relations, services[,] solace."'[citation omitted].
Quoting LaBonte v. National Gypsum, 110 N.H.314, 318, 269 A.2d 634, 637 (1970). .../...
While the right to recover for loss of consortium was originally not reciprocal, inuring historically only to the husband, see, e.g., Sanford v. Inhabitants of Augusta, 32 Me.536 (1851), in 1967 the Maine Legislature remedied this imbalance by enacting what is now 14 M.R.S.A. § 302 giving married women the right to recover for loss of their husband's consortium. See McKellar v. Clark Equipment Co.,472 A.2d 411, 414 (Me.1984). Since then, the Law Court has decided a number of cases defining the limits of that right, a right that is all too often ignored in the development of tort cases. As suggested in Poirier, the right of consortium encompasses more than the sexual relationship between spouses. As the Law Court stated in Sawyer v. Bailey, 413 A.2d 165, 167 (Me.1980), "the law is concerned with the protection of the 'relational' interests of married persons and recognizes as an actionable tort any interference, intentional or negligent, with the continuation of the relation of husband and wife...." This "relational" interest includes both physical and "psychic" injuries to the spouse. See Gayer v. Bath Iron Works Corp., 687 A.2d 617, 622 (Me.1996).
III. Elements of Consortium Recovery
A. Effect on Sexual Relations
Interference with the sexual relationship between husband and wife is what most lawyers and laypersons first think of when they consider recovery for loss of consortium, and this aspect of consortium has deep historical roots in expressions such as loss of the spouse's "services" or "conjugal affection," see Black's Law Dictionary, supra at 408, or, as the Law Court put it in Gayer, detrimental effect on "spousal relations." 687 A.2d at 622. While presumably this element of loss of consortium was subject to some sort of estimation by juries of the past, presumably in today's opener atmosphere, evidence of a couple's strong sexual relationship could be offered to show the nature and extent of that loss. .../...
Traditionally, more general testimony such as that the parties have sex less often or that the injury makes the party less enthusiastic about having sex as he or she was admissible and probative of loss of consortium. Today, on the other hand, more detailed testimony about a couple's sex life will probably be accepted and found to be probative.
B. Loss of Comfort and Society
Perhaps the most important non-sexual aspect of consortium is the comfort, companionship, and affection of the other spouse. See, e.g., Hardy v. St. Clair, 1999 ME 142, ¶ 8 n. 3, 739 A.2d 368, 371.
This concept has been expressed in many ways and is obviously not subject to strict definition. It therefore provides the trial lawyer with a large range of potential evidence of loss and benefits from use of the attorney's imagination. Consider the following passage:
The record establishes ... that the Brandaos are a close and loving family. Mr. Brandao testified that after work when he was on the road, the first person he would call was Terri to tell her how much he loved and missed her. Before the accident, the Brandaos had a very open relationship with free dialogue between them. After the accident, it was extremely difficult for them to communicate. .../...
Right after the accident, Tim Brandao stated that he had to learn to take life day by day and that he could only hope that his wife would wake up each successive day in a better frame of mind and with the physical ability to do more. Before the accident, Terri did many things for the family and his career which he never had to think about. After her injuries, however, he had to worry about things getting done, such as preparing his expense reports and income tax documents.
Before the accident, whenever Mr. Brandao was in Shreveport, the family would go to church together. After the accident, they stopped going to church with Terri because she was physically unable to go. Before the accident, Terri never had 'bad days' which totally incapacitated her ability to socialize or interact with her family.
After the accident, even as much as four years later, Terri has a 50/50 split between 'good days' and 'bad days.' Mr. Brandao stated that he still suffers through the bad days when Terri is unable to provide for him as she once did. Because of Mrs. Brandao's injuries, their social relationships and interactions with close friends have been compromised, adding even more stress and strain to their relationship.
Before the accident, Terri Brandao was fun-loving, outgoing and pragmatic. Afterwards, she did not 'have any answers' about what the family was going to do together.
Because of Terri's condition, the Brandaos had to repeatedly decline vacations with friends. After years of this type of disruption in their family life, Mr. Brandao expressed frustration and was upset with Terri because she was unable to endure even the simple and basic demands of normal social interaction.
Notwithstanding Mr. Brandao's testimony that he and his wife have grown closer and that his love for her has grown even stronger, the record is replete with incidents which show how the accident has adversely affected the Brandaos' marital relationship. .../...
Mrs. Brandao's injuries are permanent; the lifestyle changes the Brandaos have had to adapt to are likewise permanent. Brandao v. WalMart Stores, Inc., 803 So.2d 1039,1045-46 (La.App.2001).
This is great evidence of the "relational" aspect of consortium - what makes the marriage tick, how do the spouses function together, how do they enjoy each other and rely on each other.
The Law Court has specifically stated on at least a couple of occasions that loss of consortium can include psychic injury and can also be caused by psychic injury, see, e.g., Gayer, 687 A.2d at 622; Roche v. Egan, 433 A.2d 757, 759 (Me.1981), so the mental aspects of the loss of comfort and society are important. For example, in Poirier, the plaintiff was able to show that as a result of her husband's injuries, the wife suffered substantial stress that was compensable as an effect of loss of consortium. 745 F.Supp.at 32.
C. Economic Loss
The compensability of economic losses resulting from a spouse's personal injury is a somewhat more questionable proposition than the physical and psychic injuries. While traditionally a husband could recover for the loss of the wife's household services, see, e.g., Kelley v. Thibodeau,120 Me. 402, 115 A. 162, 163 (1921), it is doubtful that such a loss would now be recognized. In Poirier, the court considered the wife's loss of income resulting from her staying home to take care of her husband, as well as the value her services in providing that care, 745 F.Supp. at 32, but the Oregon Appeals Court distinguished Poirier in Axen v. American Home Products Corp. ex rel. Wyeth-Ayerst Laboratories, 974 P.2d 224, 237 (Or.App.1999) as follows:
Plaintiffs cite a number of cases that they claim support their argument, but a closer examination of those cases reveals that, although the courts in those cases may have awarded the uninjured spouse certain economic damages, those damages did not include lost income. [citations omitted]. .../...
In Poirier, Ouachita Natl. Bank, Ossenfort, and Biddle, the courts included the fact that the spouse had left work in their analyses of the claims but did not factor lost earnings into the final accountings. At most, the courts determined that a spouse who has left work to care for the injured spouse may be entitled to recover the reasonable value of the nursing care he or she provided.
The Oregon court denied recovery to the spouse for her loss of income from taking an early retirement.
IV. Strategies for Recovery of Loss of Consortium
While in Maine, the "elements" of loss of consortium are not broken out as discretely as in, say, Louisiana, where seven separate elements are identified, see Brandao, 803 So.2d at 1045 ("In general, a claim for loss of consortium has seven elements:
1. loss of love and affection;
2. loss of society and companionship;
3. impairment of sexual relations;
4. loss of performance of material services;
5. loss of financial support;
6. loss of aid and assistance;
7. loss of fidelity,
one still faces the basic dilemma of whether to attempt to establish consortium by strict proof of separate elements or by a more "gestalt" approach or by a mixture of both. .../...
If concrete, quantifiable evidence of loss is available, it should be used, but, because "damages for loss of consortium, like damages for hedonic losses and pain and suffering, have an inescapable subjective quality that must be left to the jury," Urban v. Goodyear Tire & Rubber Co., 2000 WL 1800679, *6 (Ohio App.), the more impressionistic approach will generally be compelled by the nature of the evidence. Luckily, however, even in states like Louisiana, the plaintiff need not introduce proof on every element in order to recover, and appellate review is generally deferential, so that jury awards will generally be upheld.
However, that also means that findings of no damages will also be affirmed, as they have been in at least two Maine cases. See Pelletier v. Fort Kent Golf Club, 662 A.2d 220,224-25 (Me.1995);Westlake v. Morton,655 A.2d 334 (Me.1995).
Loss of consortium is injury to a marriage as "a single conceptual unity...," Axen, 974 P.2d at 237, quoting Terrence F. Kiely, Modern Tort Liability: Recovery in the '90s § 8.10, at 407 (1990). If you can communicate that idea to the jury and persuade them that damage is just as important an element of your case as the physical injuries to the plaintiff by painting a vivid and sympathetic picture of the nature of the relationship before and after the injury, you will maximize damages for loss of consortium. .