What Is Loss Of Consortium?

Loss of consortium is a legal concept that allows a spouse to seek compensation for the loss of companionship, affection, and other relational benefits resulting from injuries sustained by their partner due to another’s negligence or wrongful act. In Illinois, this claim recognizes the profound impact that a serious injury can have not only on the victim but also on their spouse, acknowledging the deprivation of the marital relationship’s intangible aspects.

Definition and Scope of Loss of Consortium in Illinois

In Illinois, loss of consortium encompasses various elements of the marital relationship, including:

• Companionship and Society: The mutual fellowship, affection, and comfort that spouses provide to each other.
• Sexual Relationship: The physical intimacy between spouses.
• Support and Services: The assistance and services that spouses render to each other in managing household and family responsibilities.

The Illinois Supreme Court, in Dini v. Naiditch, recognized that loss of consortium includes not only material services (household and family responsibilities) but also elements of companionship and happiness.

Legal Basis for Loss of Consortium Claims

Loss of consortium claims in Illinois are considered derivative in nature, meaning they arise from the injury sustained by the spouse. However, they are also recognized as independent actions, allowing the non-injured spouse to seek damages for their own losses. This dual characterization was discussed by the Illinois in Blagg v. FWD Truck & Equipment Co.

Importantly, the success of a loss of consortium claim is contingent upon the validity of the injured spouse’s underlying personal injury claim. If the injured spouse’s claim fails, the loss of consortium claim typically cannot stand independently. This principle underscores the derivative aspect of such claims.

Who Can File a Loss of Consortium Claim?

In Illinois, the right to file a loss of consortium claim is traditionally reserved for spouses. This means that legally married individuals can seek compensation for the loss of consortium resulting from injuries to their partners. The Illinois Pattern Jury Instructions (specifically, Pattern Jury Instruction 32) clarify that both husbands and wives may recover for loss of consortium. It’s important to note that Illinois law does not extend loss of consortium claims to individuals who are not legally married, such as domestic partners or fiancés. This limitation underscores the state’s recognition of the marital relationship as the basis for such claims.

Elements of a Loss of Consortium Claim

To successfully establish a loss of consortium claim in Illinois, the following elements must be demonstrated:

1. Valid Marriage: The claimant must be legally married to the injured person at the time of the injury.
2. Tortious Injury to Spouse: The claimant’s spouse must have sustained an injury due to the defendant’s negligent or intentional act.
3. Loss Suffered: The claimant must have experienced a loss of consortium as a direct result of their spouse’s injury.

These elements collectively establish the foundation for a loss of consortium claim, linking the defendant’s wrongful conduct to the claimant’s loss.

What Types of Damages are Recoverable in Loss of Consortium Claims?

Damages awarded for loss of consortium are considered non-economic, as they pertain to intangible losses that do not have a direct monetary value. These damages may include compensation for:

• Loss of Companionship: The deprivation of the injured spouse’s company and fellowship.
• Loss of Affection: The loss of mutual love, comfort, and emotional support.
• Loss of Sexual Relations: The inability to engage in physical intimacy.
• Loss of Assistance: The absence of help in household and family duties.

The Illinois Pattern Jury Instructions provide guidance on assessing these damages, emphasizing that they should reflect the actual losses suffered by the claimant.

It’s important to note that punitive damages are not permitted in loss of consortium actions in Illinois. This was established by the Illinois Supreme Court in Hammond v. North American Asbestos Corp., where the court held that punitive damages are not allowed in an action for loss of consortium.

Statute of Limitations for Loss of Consortium Claims

In Illinois, the statute of limitations for loss of consortium claims aligns with that of the underlying personal injury claim. Under 735 ILCS 5/13-203, actions for damages for loss of consortium must be commenced within the same period of time as actions for damages for injury to the person of another.

This means that if the injured spouse has a two-year statute of limitations to file a personal injury claim, the loss of consortium claim must also be filed within that same two-year period. Failure to do so may result in the loss of the right to seek compensation.

Impact of Contributory Negligence on Loss of Consortium Claims

Illinois follows a modified comparative negligence system, where a plaintiff’s recovery can be reduced by their percentage of fault, and recovery is barred if they are found to be more than 50% at fault. This principle extends to loss of consortium claims. In Blagg v. FWD Truck & Equipment Co., the court addressed the effect of the injured spouse’s contributory negligence on the loss of consortium claim, concluding that the comparative negligence principles apply to such claims.

Therefore, if the injured spouse is found to be partially at fault for the incident leading to their injuries, the non-injured spouse’s loss of consortium damages may be proportionally reduced. For example, if the injured spouse is deemed 30% at fault, the loss of consortium damages awarded to the non-injured spouse would be reduced by 30%.

Contact the Dedicated Illinois Loss of Consortium Lawyers at John J. Malm & Associates

If your loved one has suffered an injury or killed because of another’s negligence, contact the top-rated Illinois personal injury attorneys at John J. Malm & Associates. Our compassionate accident lawyers have over 90 combined years of experience representing individuals and their families after a devastating accident. With offices in Naperville and St. Charles, we are ready to fight for you and get you the compensation you deserve.