Spouse Awarded $1,000,000 for Loss Of Consortium Claim

Posted on March 7, 2009 by John Hochfelder

Loss of consortium is the term most often used by judges and lawyers to refer to the claims of physically uninjured spouses in personal injury cases brought by their physically injured mates. The claim arises when a physically injured person cannot as a result provide his or her spouse with the services, companionship, love, affection and sexual relations enjoyed before the accident.

The loss of consortium claim is usually not a significant one unless the physically injured spouse has suffered a devastating, long-lasting injury such as paralysis, incontinence, loss of sexual function or inability to walk.

Judges in New York tell juries in personal injury cases that in determining the loss of consortium damage amounts they are to consider following factors and traits of the physically injured spouse:

  • disposition and temperament
  • social life
  • services rendered in supervising the household
  • acts of affection, love and sexual intercourse

It's obvious that these elements of the claim are vague and I can tell you from experience that juries often misunderstand them. As a result, loss of consortium awards range from shockingly low or even nothing at all to amazingly high. The appellate courts do not hesitate to exercise their powers, in New York under CPLR 5501, to increase or decrease loss of consortium verdicts when they find the amounts awarded deviate from what is reasonable compensation.

Here are some of the higher awards sustained in New York for loss of consortium claims:

  • Villaseca v. City of New York (Appellate Division, 1st Dept., 2008) - a Bronx County jury awarded Diane Villaseca $1,800,000 for her loss of consortium claim in connection with an $8,000,000 pain and suffering award for her husband who suffered loss of vision after nine surgeries (his pain and suffering claim was reduced to $5,000,000, as we noted previously here). On appeal, Ms. Villaseca's award was reduced to $750,000 ($250,000 past, $500,000 future), with the court noting that she had assumed full responsibility for household chores, cooking and helping her husband move about.
  • Bissell v. Town of Amherst (Appellate Division, 4th Dept., 2008) - an Erie County jury awarded Sherry Bissell $3,000,000 for her loss of services claim ($1,000,000 past, $2,000,000 future) in connection with her husband Peter's fractures of his lumbar vertebrae from a workplace fall that left him paralyzed, incontinent and sexually dysfunctional. Ms. Bissell took over all aspects of her husband's hygienic care. The appeals court reduced her award to $1,000,000 ($250,000 past, $750,000 future).

  • Hopper v. Regional Scaffolding & Hoisting Co., Inc. (Appellate Division, 1st Dept., 2005) - a Bronx County jury awarded Laurel Hopper $1,500,000 ($300,000 past, $1,200,000 future) in connection with her husband Bill's spinal injuries from an elevator hoist drop. He underwent a T10-12 laminectomy and suffered ruptured blood vessels that led to a spinal cord stroke. He was left in constant pain, incapable of sitting long and with frequent urinary urge. His wife became his caregiver. His prognosis was poor and the $1,800,000 pain and suffering award was upheld on appeal and the loss of consortium award was reduced to $800,000 ($200,000 past, $600,000 future).

In some cases, juries have awarded nothing at all, or too little. For example, in Barnaby v. Gold Construction Corp. (Appellate Division, 1st Dept., 2008), the judge in a non-jury damages only trial in Bronx County awarded nothing at all to the spouse and only $50,000 to a laborer who fell at work sustaining a fractured ankle and torn meniscus in his knee. A new trial was ordered because the judge failed to state why he didn't make an award for loss of consortium, especially in view of the fact that Ms. Barnaby was left with a spouse largely confined to their home and unable to do any household chores.

Don't get the impression that loss of consortium claims are often in the $750,000 to $1,0000,000 range. They aren't. Typical awards in significant but non-catastrophic injury cases are more along the line of the following cases:

Insider's Tips:

  1. When there's a divorce or the spouses separate after the accident, the loss of consortium claim will be negatively affected. There's no spousal claim for the time period after the separation and any award for the prior time when they were together will likely be much less than had the jury not known about the marital strife. Savvy lawyers will either avoid adding the loss of consortium claim at all or they will try to get the uninjured spouse to drop the claim. Jurors do not want to hear about the divorce or the separation. As Maryland attorney Ron Miller has noted, they want to see the spouses sticking together "for better or worse."
  2. Usually, a loss of consortium claim is included in (i.e,, derivative of) a personal injury claim and counts toward the limit of liability under any applicable liability insurance policy. In some cases, though, for example in Tennessee under the Government Torts Claim Act, the loss of consortium claim is separate. (h/t Day on Torts)

Tidbit:

Loss of consortium claims began in England in 1846 via statute as Lord Campbell's Act and were originally paired in a Latin expression: "per quod servitium et consortium amisit,"  translated as "in consequence of which he lost her society and services."

 

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Paralyzed from Diving Accident, Jury Awards $76 Million - Will Verdict be Upheld or Paid?

Posted on January 27, 2009 by John Hochfelder

As reported by Walter Olson at Overlawyered, a 20 year old Merritt Island, Florida man just won a $76,000,000 jury verdict for damages he suffered as a result of a diving accident in which he broke his neck on the bottom of a shallow river. The pain and suffering component was $52,800,000. He is now a quadriplegic (all four limbs are paralyzed).

Apart from the size of the damages award, this case (Hoffman v. C&D Dock Works) is noteworthy also because of other factors, as reported in local newspapers:

  • The young man answered a dare and sprinted down a dock as he jumped into the river.
  • The defendant, C&D Dock Works, filed for bankruptcy protection and did not defend itself at trial.
  • The defendant claimed there was no negligence because there was a rail at the edge of the water indicating a potential danger; however, a judge ruled last year that the defendant was negligent.

These types of headline cases leave many of our citizens feeling that the civil justice system has run amok. Has it? Phillip Howard, the author of upcoming book Life Without Lawyers, summed up this sentiment well in an op-ed article in yesterday's Wall Street Journal entitled "How Modern Law Makes Us Powerless."

One wonders what it is the dock owner should have done to prevent a 20 year old boy from answering a dare, running down a dock and jumping into a river alongside which he had been working. As the dock company's former owner said: "There's got to be some common sense."

Then there's the damages award. Mind you, I practice traumatic injury trial law exclusively and am always trying to maximize my client's case and to obtain the most in damages that the law allows. And I am keenly aware that no amount of money ever compensates a traumatic injury victim such that it makes the whole thing "worth it." But in my experience I can tell you that there's no way this quadriplegia pain and suffering damage award would be sustained in New York.

The jury awarded of $52,800,000  for this young man's pain and suffering. And that was in addition to awards for so called special damages that are easily calculable: past and future medical expenses in the sum of $23,200,000 and lost earnings in the sum of $672,000.

In New York, juries have awarded tens of millions of dollars to paralyzed victims of negligence only to see the appellate courts substantially reduce those verdicts.

  • Brown v. City of New York (Appellate Division, 2nd Dept.; 2000) - $10,000,000 past and future pain and suffering awards for two brothers, 26 and 27 year old rendered quadriplegic and pentaplegic reduced to $4,000,000 each.
  • Driscoll v. New York City Transit Authority (Appellate Division, 2nd Dept.; 1999) - $10,000,000 jury verdict for past and future pain and suffering for a 19 year old rendered quadriplegic in a subway accident reduced to $2,000,000.
  • Cruz v. Long Island Railroad Co. (Appellate Division, 2nd Dept.; 2005) - $28,000,000 jury award for past and future pain and suffering for a  a person rendered a T12/L1 paraplegic reduced on appeal to a total of $12,000,000.

The Hoffman case is on appeal and as I indicated, it's very unlikely that any significant amount will be collected by the plaintiff. Even if the verdict on liability stands and even if the amount of damages is upheld, there remains the issue of payment. It's clear that the defendant allowed this case to be tried without a defense because there was no liability insurance and there are no significant assets from which collection of a judgment can be made. The defendant is now bankrupt, the plaintiff of course remains tragically paralyzed and our system of civil justice has been tested once again.

We will follow this case and report on future developments - both with respect to Mr. Hoffman and with respect to our civil justice system.

 

 

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