Loss of consortium is a California legal claim that belongs to the husband, wife, or registered domestic partner of a person who was seriously injured by someone else’s negligence or wrongdoing. It compensates the uninjured partner for the loss of the injured partner’s love, companionship, comfort, care, assistance, protection, affection, society, moral support, and the enjoyment of sexual relations. It is a noneconomic damage, so there is no fixed formula or dollar amount; a jury decides what is reasonable based on the evidence. The claim generally must be filed within two years of the injury. If the injured partner later dies, the same kinds of losses are pursued through California’s wrongful death statute rather than through a separate consortium lawsuit.<\/p>\n
Consortium is an old legal word for the bundle of benefits that spouses provide to one another: companionship, affection, emotional support, help around the home, and a sexual relationship. When a third party’s negligence or intentional act seriously injures one spouse, the other spouse loses some or all of those benefits. California law treats that loss as a real, compensable injury to the uninjured spouse, separate from the physical injury suffered by the hurt spouse.<\/p>\n
For decades California did not allow this claim. That changed in 1974, when the California Supreme Court decided Rodriguez v. Bethlehem Steel Corp. Mary Anne Rodriguez’s husband was left paralyzed by a workplace accident, and the court held for the first time that “in California each spouse has a cause of action for loss of consortium, as defined herein, caused by a negligent or intentional injury to the other spouse by a third party.” The court acknowledged that the loss is “principally a form of mental suffering” but concluded that juries are fully capable of putting a fair value on it.<\/p>\n
Today the claim is spelled out for jurors in California Civil Jury Instruction (CACI) No. 3920<\/u><\/a>, Loss of Consortium (Noneconomic Damage), published by the Judicial Council of California. The instruction tells the jury to compensate the uninjured spouse for two categories of loss:<\/p>\n The same instruction is clear about what the jury should not include: lost financial support, the value of nursing care the uninjured spouse now provides, wages the uninjured spouse gave up to become a caregiver, and the cost of hiring someone to do household chores. Those are economic losses that belong to the injured spouse’s own personal injury claim, and California does not allow the same loss to be paid twice.<\/p>\n Because it compensates for intangible harm, California classifies loss of consortium as a noneconomic damage. Civil Code section 1431.2<\/u><\/a>, enacted by Proposition 51, lists “loss of consortium” by name in its definition of noneconomic damages, alongside pain, suffering, emotional distress, and loss of society and companionship.<\/p>\n California draws a firm line around who may bring this claim. The California Supreme Court has said that judicial recognition of a consortium cause of action “must be narrowly circumscribed,” and the result is one of the strictest eligibility rules in the country.<\/p>\n A legally married husband or wife may bring the claim. This is the classic Rodriguez plaintiff, and it remains the most common situation.<\/p>\n California Family Code section 297.5<\/u><\/a> gives registered domestic partners “the same rights, protections, and benefits” as spouses under every source of California law, including the common law. A partner whose domestic partnership was registered with the California Secretary of State at the time of the injury therefore has the same consortium claim a spouse would have. An unregistered partnership does not qualify.<\/p>\n California courts have declined to extend the claim beyond the marital or registered-partner relationship:<\/p>\n Some out-of-state websites say that “children or parents may qualify depending on state law.” That is true in a number of other states, but it is not the law in California, and relying on it can lead a family to expect compensation that is not available here.<\/p>\n A valid marriage or registered partnership must be in place at the time of the injury. In Zwicker v. Altamont Emergency Room Physicians Medical Group (2002), a man was injured by a misdiagnosis before his wedding, and tests taken before the wedding had already shown that he was infertile. The Court of Appeal held that his wife had no consortium claim because she “had no right to [his] consortium at the time of the misdiagnosis,” and the fact that she discovered the full extent of the injury after the wedding did not change the result.<\/p>\n There is a narrow exception for latent injuries. When the harmful exposure happens before the marriage but the injury itself does not develop or become discoverable until after the wedding, so that the underlying claim accrues during the marriage, the spouse may still have a valid claim. The Court of Appeal reached that result in asbestos disease cases in Leonard v. John Crane, Inc. (2012) and Vanhooser v. Superior Court (2012). Whether a particular situation falls on the Zwicker side or the Leonard side of this line is a question for an attorney.<\/p>\n California courts, and the sources cited in CACI No. 3920, describe the claim as having four elements, each of which the spouse or partner must prove:<\/p>\n Two points about the second and third elements deserve emphasis. First, the injury does not have to be total or permanent. The Court of Appeal confirmed in Mealy v. B-Mobile, Inc. (2011) that “a partial loss, or diminution, of consortium is compensable,” so a spouse whose partner recovers over eighteen months can still claim for the period the relationship was impaired. Second, the injured spouse’s own case matters enormously. As one appellate court put it, if the injured person “has no cause of action in tort his spouse has no cause of action for loss of consortium.” If the injured spouse loses on liability, the consortium claim falls with it, which is one reason the two claims are almost always filed and tried together.<\/p>\n This is the point most often blurred in online explanations, and the earlier version of this article did not draw the distinction clearly either. In California, “loss of consortium” in the strict sense is a common law claim for the spouse of a person who was injured and is living. When a spouse dies, the surviving spouse or partner does not file a separate consortium lawsuit. Instead, the very same categories of loss are recovered as noneconomic damages in a wrongful death action.<\/p>\n California’s wrongful death statute, Code of Civil Procedure section 377.60<\/u><\/a>, gives the surviving spouse or domestic partner, along with children and certain other heirs, the right to sue, and section 377.61<\/u><\/a> allows damages that “under all the circumstances of the case, may be just.” The jury instruction for those damages, CACI No. 3921, lists the noneconomic losses a surviving spouse can recover: the decedent’s “love, companionship, comfort, care, assistance, protection, affection, society, moral support” and “the loss of the enjoyment of sexual relations.” Lawyers and judges often call these loss of consortium damages in the wrongful death context, even though they arise under the statute rather than under Rodriguez. What a wrongful death jury may not award is compensation for the survivor’s own grief, sorrow, or mental anguish, or for the decedent’s pain and suffering.<\/p>\n The California Supreme Court explained how the two claims relate in Boeken v. Philip Morris USA, Inc. (2010). Judy Boeken sued for loss of consortium while her husband was seriously ill with lung cancer, then dismissed that case with prejudice. After his death she filed a wrongful death action seeking compensation for the same loss of companionship. The court held that both actions protected the same “primary right,” the right not to be wrongfully deprived of spousal companionship and affection, and that a living-spouse consortium claim can include damages for the companionship that will be lost after a spouse’s anticipated premature death. Because she had already given up that right once, her wrongful death claim for loss of consortium was barred.<\/p>\n\n
Who Can File a Loss of Consortium Claim in California?<\/h2>\n
Spouses<\/h3>\n
Registered domestic partners<\/h3>\n
Who cannot file<\/h3>\n
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The marriage must exist when the injury happens<\/h3>\n
The Four Elements of a California Loss of Consortium Claim<\/h2>\n
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Loss of Consortium When Your Spouse Survives Versus When Your Spouse Dies<\/h2>\n