In Pennsylvania, when one spouse is injured, the uninjured spouse may bring a claim for monetary compensation under a theory of loss of consortium. Under Pennsylvania law, the uninjured spouse is legally entitled to compensation for the loss of all the services and companionship of the injured spouse. This includes but is not limited to the loss of marital relations. Loss of consortium claims are important to understand prior to filing lawsuits for victims of personal injury and/or medical malpractice cases. The experienced lawyers at Flaherty & Fardo LLC are here to break it down for you and help you get the settlement you deserve.

Settling Loss of Consortium Claims

Why classification as a derivative claim matters

Although a loss of consortium claim is a distinct cause of action, it is what is known as a “derivative” claim. Darr Const. Co. v. W.C.A.B. (Walker), 552 Pa. 400, 408, 715 A.2d 1075, 1079-80 (1998). This is a common law concept that exists because the consortium claim “emerges from the impact of one spouse’s physical injuries upon the other spouse’s marital privileges and amenities.” It is derivative because the consortium claim cannot exist without the original injury upon that spouse, and as a legal fiction the marital unit is recognized as one legal entity. Hence, the consortium claim is derived from the uninjured spouse’s personal injury claim. Because the claim is ‘derivative’, the law treats that claim differently for insurance and settlement purposes and it is important for injured victims to understand how loss of consortium affects personal injury lawsuits.

Loss of Consortium Claims in Practice

An example of loss of consortium and what you can do

In the landmark case of Koenig v. Progressive Insurance Co., the Pennsylvania Supreme Court held that because the claim is derivative, the value of the uninjured spouse’s claim is to be included under the injured spouse’s policy limits. The following example will help illustrate the importance of understanding the Pennsylvania Supreme Court decision as it applies to loss of consortium claims.

Car accident cases can often involve loss of consortium claims in PA.

A husband and wife are driving together. The husband is driving and the wife is the passenger. A different young driver, texting on her phone runs a red-light and crashes into the married couple. The wife is seriously injured. Her husband is uninjured but spends the next several months and years altering his lifestyle to help care for his wife. They no longer have marital relations.

In cases where liability is clear and damages are serious, as in this example, the defendant’s insurance company will typically offer the policy limits of their insured driver (the young girl) to settle the case.

Of course, the wife has a personal injury claim. But the husband also has a separate and distinct loss of consortium claim because of his wife’s injuries.

The insurance company is required to protect the interests of their insured driver, and it will try to settle the husband’s loss of consortium claim along with the wife’s claim. Be Careful.

Under the law, once the insurance company tenders the policy limits for the wife’s claim, it has no obligation to cover the loss of consortium claim. This is because of the Pennsylvania Supreme Court’s decision in Koenig v. Progressive Insurance Co. and the interpretation of the ‘per person’ language in the insurance contract.

Thus, if the injured spouse does settle, be sure that the settlement agreement reflects whether or not the uninjured spouse intends to settle the loss of consortium claim.

If not, the husband can still bring his claim to trial if he is unwilling to settle. It does not matter that his wife previously settled her claim. As stated, the husband’s claim for his losses can be separate and recoverable.

If you think you have a loss of consortium claim, get in touch with the attorneys at Flaherty & Fardo. We are experienced lawyers who offer free consultations to help you get the justice you deserve.