Friday, October 02, 2009

"Loss of Consortium" Should Not Apply to the Dead

Kentucky law, like many states' laws, allows you to sue if someone incapacitates your spouse, causing you to suffer "loss of consortium." That means you are deprived of the "emotional and physical comfort" that a spouse can give - emphasis on the physical. If, for example, a hospital makes a mistake that leaves your spouse in a coma, you can sue for loss of consortium. The law does not apply, though, if your spouse dies.

Until now. The Kentucky Supreme Court ruled yesterday that widows and widowers can sue for loss of consortium. Judge Mary Noble, writing for the court, wrote that it "defies common sense" for the law to let you sue if your spouse is incapacitated, but not if your spouse dies.

No, it doesn't. If your spouse is incapacitated, you can't enjoy consoritium, and there is nothing you can do about it. If that condition is due to someone else's error, you can sue them, and rightly so. If your spouse dies, then obviously you can't enjoy consortium with them. But there is something you can do about that condition: get married again.

The loss of consortium law was not created to give people a legal right to sex. It was a recognition that marriage was meant to be exclusive and to last until death.


WHA said...

What about people who lose a spouse later in life and have no desire to find a new mate, but have still suffered the loss of a spouse? Should those people be denied due to their "failure to mitigate"?

archeo said...

We have way too many lawyers in America. They have screwed up this country more than any other profession, by far.

Thomas M. Cothran said...

I suppose that's true if you consider one spouse's consortium to be a commodity interchangeable with another. If, however, you view a spouse's companionship not to be companionship generally where anyone might be substituted, but companionship with a particular person, then the court ruled correctly.

halifax said...

You can still sue those responsible for wrongful death. Thus, there is no reason for the 'loss of consortium' justification, especially if it is generally understood to refer to physical relationships.

Thomas M. Cothran said...

Kentucky's statute actually does not state that a spouse can no longer claim loss of consortium if the spouse dies, although the common law did. The court argues that since the legislature did not specify death as a limitation on collecting damages like the common law did prior to the adoption of the statute, the intent of the legislature can be inferred to mean that death is not a limitation on collection.

And the reason for the common law rule that when one dies the claim of loss of consortium cannot be a cause of action was that the damages would be covered as part of a wrongful death action, which is initiated by and awarded to the estate of the victim. When the legislature made loss of consortium a cause of action, they specified that it belongs to the spouse rather than the estate, which, in my reading, allows the estate to proceed in the wrongful cause of death action, while the spouse separately can proceed with a loss of consortium claim. As I understand it, in common law this would have been proscribed for mainly procedural reasons, which are no longer a problem with the adoption of the statute.

The court points out that the legal effects of marriage after death is not at issue in this case, since the statute intends to establish compensatory damages when a third party wrongfully intervenes in a spousal relationship so as to deny one spouse the consortium of another.

Gruntled said...

Kentucky can, of course, change common law by statute. I think the logic of the common law rule, though, is that a married person denied consortium with his or her own spouse had no alternative, whereas a widow or widower does.

Of course spouses are not interchangeable. The law provides a remedy when the law creates the bind - in this case, forbidding lawful consortium for those married to people who have been rendered unable, as per a legal judgment.

Thomas M. Cothran said...

The issue, as framed in the opinion, concerns damages. The court cites Cooley's Treatise on the Law of Torts to the effect that, under the common law, if a wife dies, one would be entitled to, essentially, damages for loss of consortium under a wrongful death action. If one sued for both loss of consortium and wrongful death, one would be attempting to collect twice for the same damages. If this is true, than the common law did grant husbands (not wives) damages for loss of consortium, just under a different cause of action.

It may be true that, to some degree, the law wishes to alleviate a person who is not legally able to engage in spousal relations since the wife is still alive. However, this does not change the fact that if the spouse dies, then the person has still suffered loss of consortium unless he takes a further action to regain the sort of thing he lost (we can ignore the fact that it's not really the same thing that is lost).

Say that a person whose spouse is incapacitated lives in a state where adultery is legal. If the common law limits loss of consortium actions for the reason you suggest rather than the procedural issues the court cites, then one cannot sue for loss of consortium because there are other legal options open. Perhaps that was the common law's rational, but if so, it was not a good one.