A serious injury not only affects the injured person. The non-injured spouse is also damaged. There has been a disruption in the marital relationship.
The law recognizes a right of recovery for the non-injured spouse for the interruption in the marital relationship, such as
- the interruption or cessation of sexual relations as a result of the injury; typically, the spouse who suffered a serious spinal injury cannot engage in sexual intercouse;
- the inability of the spouses to engage in other activities together, such as social and recreational (e.g., dancing, going to church, biking, hiking, walking, etc.);
- the non-injured spouse having to assume the household duties of the injured spouse, such cleaning, cooking, picking-up the children at school, etc.; and
- the non-injured spouse having to care for the other spouse, such as bathing, toileting, dressing, feeding, etc.
Since the non-injured spouse has a cause of action for loss of services, both spouses will be plaintiffs in the lawsuit. The non-injured spouse will have to appear for a deposition as well as agree to a settlement.
Generally, we recommend that the non-injured spouse claim loss of services only in the most serious injury cases. Only in very serious injury cases will the jury award loss of services.
Also, the injured person may not want his spouse to be a co-plaintiff for the following reasons:
- the injured person may feel that he has suffered the injury and that his spouse should not be a “partner” in the recovery; we had a client who unhappily had to give the settlement to her non-injured husband;
- the marital relationship is not secure, and there is the possibility that the couple may separate or divorce before the case is settled; in this case, the non-injured spouse may refuse to settle the personal injury lawsuit in order to gain leverage in the divorce case; and
- there has been no significant disruption in the marriage due to the injury.
We make a case by case determination as to whether there should be a loss of services claim by the non-injured spouse.
If you or your spouse have been involved in an accident, please call us for a free consultation at 800-581-1434, or write to us at firstname.lastname@example.org.
Mark E. Seitelman, 5/28/09, www.seitelman.com.