Should a Plaintiff's Spouse Bring a Loss of Consortium Claim?

Posted Tuesday, May 02, 2017 by Ed Harper

Should a Plaintiff’s Spouse Bring a Loss of Consortium Claim?

Washington Pattern Instruction 32.04, the loss of consortium instruction, is based on an injury to the other spouse. But this instruction has been expanded of late to include other family members, and significant others. This instruction is based off RCW 4.56.250.

The loss of consortium cause of action is available to family members of a person injured or killed by the wrongful acts of another most likely it should be brought in all cases of wrongful death. However the decision-making process for plaintiffs and their attorneys is often not obvious. Numerous factors must be considered before a claim is raised for the uninjured spouse to the jury.

Every marriage is different and decisions must be made of how involved does the uninjured spouse want to be in the litigation. “If the spouse is reluctant, the claim will not present well to the jury. You must find out the most private, intimate aspects of your client’s marriage, and make sure both spouses understand that others will be getting this information, too.”

Numerous discussions should be held with the client to determine the spouse’s ability to testify regarding the injured spouses injuries and the impact the suffering had on the family.

On October 15, 2012, the Court of Appeals of Washington, Division I rendered this unpublished opinion in the case* Michael Tiedemann v. Allstate insurance company*; an unmarried couple who had lived in British Columbia in a marriage-like relationship for 3 ½ years could bring and maintain a loss of consortium claim.

Allstate made numerous mistakes in not objecting to the court permitting the loss of consortium claim as they had failed to raise this issue properly at the trial court level. “To preserve an evidentiary issue for appellate review, the specific objection made at trial must be the basis of a party’s assignment of error on appeal.” (State v. Guloy,) 104 Wn. 2d 412, 422, 700 5P 2d 1182 (1985). Because Allstate did not object to the challenged evidence on the grounds asserted on appeal, the court declined to consider these claims.

If you want more information on Loss of Consortium, see the article by Patricia Zimmer.

(http://www.americanbar.org/content/newsletter/publications/gpsolomagazinehome/gpsolomagazineindex/zimmer.html)

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