Jeffrey P. Gale, P.A. // Loss of Consortium — Think Twice (or more) Before Making This Claim

Florida case has long allowed the spouse of an injured married partner to bring a cause of action for loss of consortium, and though derivative in the sense of being occasioned by injury to the spouse, it is a direct injury to the spouse who has lost the consortium.  Busby v. Winn & Lovett Miami, Inc., 80 So.2d 675 (Fla.1955). Such damages range from the loss of household services (such as cooking and cleaning) to adversely affected sexual relations. It is precisely because of the spouse’s right to loss of consortium damages that both spouses are typically required to sign settlement releases.

While the consortium claim is a separate cause of action, as a derivative claim it must be brought in the same lawsuit as the underlying injury claim. As so eloquently stated by ace Florida trial lawyer Dale Swope, there are consequential reasons for not rushing headlong into bringing a claim for loss of consortium: “[T]hey can do more harm than good. They open the door to broader discovery, lead to internal disagreement, create the potential risk of execution on jointly held assets, and look to the jury like a lawyer-created claim that is just excessive. They also do not increase the coverage available (except in sovereign cases) and can also cause trouble with Medicaid if the allocation of a global recovery is made unilaterally.” See May/June 2019 Florida Justice Association Journal. Hence, unless the spouse has demonstrable damages, it may be best to let is rest. (All too often, spouses overestimate the value of consortium claims or their lawyers fail to give adequate consideration to the negatives.)

One of the greatest dangers of bringing a claim for loss of consortium is the consequence of coming out on the losing end of an Offer of Judgment (“OJ”) made by the defendant. Section 768.79(1), Florida Statutes describes how the “OJ” works:

In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. Where such costs and attorney’s fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff’s award. (Bold added.)

(FRCP 1.442 is the procedural companion to 768.79(1).)

Defendants are able to makes OJs on selective plaintiffs. In the case of a personal injury action involving a derivative claim for loss of consortium, the defendant can make the OJ on both the husband and wife, on just the spouse who was involved in the accident, or just the spouse making the derivative claim.

The recent case of Conti v. Auchter,   So.3d (5th DCA 3-15-2019), in which the defendant served a $2,000 OJ on the wife for her consortium claim, illustrates a downside of falling short on the consortium claim. The jury rendered a verdict for her husband in excess of $275,000 for economic damages, but nothing to her. This triggered the $2,000 OJ. On appeal, the DCA decided that because the claims of the husband and wife were inextricably intertwined, the defendant’s OJ recovery could be based on the time and expense of defending both claims. This resulted in a significant reduction to the husband’s final judgment, which included an award of $700,000 of additional fees from triggering his own $75,000 OJ. (For plaintiffs, instead of being called an offer of judgment or OJ, it is called a “demand for judgment.” The applicable language, which is contained in section 768.79(1), reads as follows: “If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand. If rejected, neither an offer nor demand is admissible in subsequent litigation, except for pursuing the penalties of this section.”) (Bold added.)

The Conti opinion does not say how much defendant will be awarded on its OJ. However, given the sizable fee awarded on the husband’s demand for judgment, it’s apparent that the amount will be high. In retrospect, had the wife’s consortium claim not been brought, Mr. and Mrs. Auchter and their personal injury lawyers would be happier today.