In many cases, the difficulties imposed on a marriage or family are imposed not by one of its members, but by an external problem that someone outside of the family caused. Under Georgia law, a loss of consortium claim can be filed by the spouse of someone who has experienced an injury on part of that third party.
Georgia law states that a loss of consortium claim includes “society, companionship, love, affection, aid, services, cooperation, sexual relations, and comfort, such being special rights and duties growing out of marriage covenants.” Smith v. Tri-State Culvert Mfg. Co., 126 GA App. 508, 510 (1972). A consortium claim encompasses all areas pertaining to the disruption of a couple’s quality of life and provides that emotional distress is recoverable and belongs exclusively to the uninjured spouse.
However, there are several key aspects to think about when considering a loss of consortium claim. First, a viable claim does not a fileable action make. In other words, this type of claim is a derivative claim, meaning that your injured spouse’s claim must exist in order for yours to exist. Thus, if your injured spouse settles his or her claim, your ability to file a consortium claim disappears.
Second, the marital problems you are experiencing must be a direct effect of your spouse’s injury. Thus, you will need to prove that you and your spouse shared a happy, healthy marriage and that this is no longer the case, as some aspect of your marriage has been directly impacted by your spouse’s sustained injury.
One of the most important things to remember is that this injury need not be physical. “So long as one spouse has suffered enough of an injury – irrespective of whether that injury is physical, emotional, or by reputation – the uninjured spouse can recover damages if the injury is proven to have interfered with the marriage.” (“Loss of Consortium”)
Once you have filed a claim, the two elements of proving it include liability and damage, both of which your lawyer will prepare for the court. Keep in mind that if you do win the claim, you can only recover for the injuries so long as they exist during the joint lives of the husband and wife. Another important thing to keep in mind is that most liability policies are written in such a manner that loss of consortium claims are included within the “single injury” limits. When the per person’s maximum insurance under the policy has been paid on account of the injury to the injured spouse, the loss of consortium will not also be paid by the liability insurer.
