The concept of lost consortium has been around for centuries, dating back to old European standards of civil justice. However, at the time – and up through 1950 in the U.S. – such claims were only viable for men whose wives had suffered injury.
In the 65 years since loss of consortium claims have been open to wives as well for the loss of spousal services when a husband suffers injury, allowances for such claims have in some states been extended to children and parents, too.
The Florida Supreme Court decided in the 1994 case of U.S. v. Dempsey parents can sue for permanent loss of filial consortium suffered as a result of significant injury resulting in the child’s permanent total disability. However, these claims are generally limited to parents of minor children, and there is yet no allowance for adult children to claim loss of consortium relating to a parent.
Still, our Boca Raton wrongful death attorneys recognize the law continues to expand in other states, and it’s possible such an expansion could someday occur in Florida.
Take the recent example before the Montana Supreme Court in N. Pac. Ins. Co. v. Stucky. This case stemmed from a terrible car accident in which a husband and father of two daughters was struck in a head-on collision, suffering severe and permanent brain injuries.
At the time of the crash, the man’s daughters were 15 and 18. The family had an auto insurance policy under which the man, his wife and daughters would have been considered insureds. The wife and daughters claimed underinsured motorist benefits as such.
Although father had made significant improvements, he continues to suffer various ailments relating to the crash, including memory loss, mood fluctuations (including angry outbursts and even physical violence toward family members), depression, visual and balance issues, pain, physical weakness and other neurospychological problems. He requires 24/7 care and monitoring, and the effects are expected to worsen as he ages.
The insurance carrier initially sought to deny coverage on the basis the truck the father was driving at the time of the crash was not insured. That claim is still pending. However, at issue before the state supreme court was the issue of the 18-year-old daughter’s claim for loss of consortium as a result of her father’s injuries.
She presented ample evidence she and her father were close before the crash, and their relationship, as a result of his injuries, has been permanently destroyed or nearly destroyed.
Insurer moved for summary judgment with regard to her claim, asserting state law does not recognize loss of consortium claims for an adult child of an injured parent. Although the claim was filed in federal court, this question of Montana law was certified to the state supreme court. Justices were asked whether state law recognizes loss of consortium claims for adult children of injured parents.
The court answered this question in the affirmative, noting the ruling was a judicial modification of common law required to prevent great injustice and to ensure common law aligns with the changing needs of society.
In order to prove such a claim, the court ruled, plaintiff must show a third-party tortiously caused the parent to suffer serious, permanent and disabling physical injuries, and further the parent’s ultimate condition is so severe it caused the parent-child relationship to be destroyed or nearly destroyed.
With that ruling, the claim will now move forward in federal court.
Again, this ruling applies only to claimants in Montana. However, it’s possible a similar judicial modification of common law could occur at some point in Florida, were the question to be presented to the Florida Supreme Court.
If you have been injured in an accident, contact the Hollander Law Firm at 888-751-7777 for a free and confidential consultation. There is no fee unless we win.
N. Pac. Ins. Co. v. Stucky, Nov. 13, 2014, Montana Supreme Court
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