26 Loss of Consortium

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

26 Loss of Consortium¹

A. Definition

In South Carolina, unlike most other states, loss of consortium is an independent, not a derivative, claim.² It is a common law action.³ As defined by one federal court it is:

... a right which law recognizes in a husband arising from the marital union to have performance by wife of all those duties and obligations in respect of him which she undertook when she entered into the marriage relation, including right to conjugal fellowship of the wife, her company, cooperation and aid in every conjugal relation, fellowship and assistance of wife, and comfort in her society as to which right of husband is peculiar and exclusive.⁴

A wife, under the common law, did not have a cause of action for the loss of her injured husband's consortium.⁵ That has been changed by a statute that reads:

Any person may maintain an action for damages arising from an intentional or tortious violation of the right to the companionship, aid, society and services of his or her spouse. Provided, that such action shall not include any damages recovered prior thereto by the injured spouse.⁶

The purpose of the statute was to extend to wives the right to recover for the loss of the consortium of their husbands.⁷

Because a claim for a loss of consortium is an independent action, judgment for the defendant in one action is not a bar to the consortium action.⁸ However, where an injured spouse brings an action and his or her spouse claims loss of consortium on the same grounds and the cases are consolidated,⁹ if the jury finds the injured spouse is not entitled to recover, the consortium claim fails as well.¹⁰

B. Elements

To prevail in an action for loss of consortium, a plaintiff must prove:

(1) the liability of the defendant for the spouse's injuries
(2) damages to the plaintiff resulting from the spouse's injury.¹¹

C. Elements Defined

1. The Liability of the Defendant for the Spouse's Injuries

The claim cannot arise if no tort¹² has been committed against the impaired spouse.¹³The plaintiff must show his or her spouse received injuries through the actions of the defendant.¹⁴ A spousal relationship between the plaintiff and the victim of the underlying tort is essential.¹⁵ South Carolina does not recognize an action for filial loss of consortium.¹⁶

2. Damages to the Plaintiff Resulting from the Spouse's Injury

Plaintiffs must prove that they have been damaged as a result their spouse's injury. The mere fact that the spouse has been injured and a jury finds a defendant liable to the injured spouse, does not mean the defendant is liable to the plaintiff in the consortium action. The jury may still find that the spouse seeking consortium has failed to prove his or her damages.¹⁷ However, one court has said that when liability has been admitted, the plaintiff is entitled to an award unless proof completely fails, and it is appropriate to charge the jury that the plaintiff is entitled to an award as a matter of law.¹⁸

Loss of consortium encompasses loss of services as well as loss of "society and companionship."¹⁹ Thus, testimony by a wife that before the accident at issue, she relied on her husband in her everyday activities, including childcare and household repairs, but that he was unable to help at all for several months after the accident was sufficient evidence to require submission to a jury as was another wife's assertion that her husband's injuries caused their normal schedule to be disrupted, she "had to wait on him hand and foot" for some two to three months, and he became short-tempered and couldn't carry on a "civil conversation."²⁰ Cessation of sexual relations will also support the second element.²¹

D. Defenses²²

The statute of limitations applicable to injuries to the person or rights of another is three years for actions arising on or after April 5, 1988, and six years for those arising before that date.²³ Actions initiated under the provision must be commenced within three years after the plaintiff knew, or by the exercise of reasonable diligence should have known, that a cause of action existed.²⁴ The right of action for loss of consortium does not accrue until the loss of the services, society and companionship of the spouse has actually occurred, and that has been defined as when the spouse sustained the injuries.²⁵

Apparently, the contributory negligence of the injured spouse may bar the other spouse's claim for loss of consortium.²⁶ Ordinarily, however, the defense requires the defendant show the plaintiff was negligent,²⁷ and that the negligence was the proximate cause of the injuries.²⁸ Traditionally, contributory negligence was a total defense to the cause of action; however, South Carolina has adopted comparative negligence under which the plaintiff may recover if his or her negligence is not greater than the defendant's, in which case the plaintiff's recovery is reduced in proportion to his or her negligence.²⁹ In Lee v. Bunch,³⁰the parties were involved in a motor vehicle accident. The jury returned a verdict assigning seventy percent (70%) of the fault to Lee and thirty percent (30%) to Bunch and a verdict in favor of Bunch on Mrs. Lee's loss of consortium claim. The trial court concluded the verdicts were inconsistent because Mrs. Lee was entitled to recover damages since the jury found Bunch was partially negligent. The South Carolina Supreme Court, however, said that it is not inconsistent for a jury to return a verdict for an injured spouse on the primary claim and for the defendant on a loss of consortium claim. It reversed the trial court and held the original verdicts in favor of Bunch on both the primary negligence and loss of consortium claims were not inconsistent.

The South Carolina Tort Claims Act waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort.³¹ The Act has been specifically applied to a loss of consortium claim.³² It contains, however, many limitations on liability and damages³³ which may preclude or restrict a plaintiff's cause of action.³⁴One is the statute of limitations which is two years, unless the claimant first files a claim pursuant to the act, in which case the limitation is three years.³⁵ Another limitation is that governmental entities³⁶ are not liable for a loss resulting from "employee conduct ... which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude ...".³⁷ Ordinarily, only the governmental entity may be named as a party defendant, and the employee committing a tort while acting within the scope of his or her official duties is not personally liable unless the conduct in question constituted actual fraud, actual malice, intent to harm, or was a crime of moral turpitude.³⁸ If the employee is named as a defendant, the name of the appropriate governmental entity must be substituted.³⁹The Act is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of his or her official duty and must be liberally construed in favor of limiting the liability of the governmental entity.⁴⁰

In theory, collateral estoppel could be a defense. The South Carolina case law on loss of consortium and collateral estoppel has been described as "long and somewhat confusing,"⁴¹ as indeed it is. Nonetheless, it does appear that neither collateral estoppel⁴²nor res judicata⁴³ will operate to bar an action for consortium.⁴⁴ Other possible defenses are a release⁴⁵ and recovery under the Wrongful Death Act.⁴⁶

E. Remedies

The successful plaintiff is generally entitled to compensatory damages. Courts have said that medical expenses paid by the plaintiff and any amount expended to hire a maid — if found to be reasonable — may be recovered, but the spouse's loss of earnings is not a proper element of damage recoverable in a suit for loss of consortium.⁴⁷ It appears that punitive damages are not available in an action for loss of consortium.⁴⁸

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Notes:

^[1] See generally, Lind, Valuing Relationships: The Role of Damages for Loss of Society, 35 N.M. L. Rev. 301 (2005).

Note that there are two cases decided by the Federal District Court for South Carolina based on maritime law. See Schumacher v. Cooper, 850 F. Supp. 438 (D.S.C. 1994) (wife of swimmer injured trying to climb aboard boat in recreational lake entitled to recover under general maritime law for loss of consortium resulting from injuries to her husband; where wife was forced to care for husband as nurse, lost husband's physical assistance, and lost ability to enjoy recreational activities, she was awarded $75,000 reduced by seventy-five percent (75%) comparative fault for husband's negligence); Bates v. Merritt Seafood, Inc., 663 F. Supp. 915 (D.S.C. 1987) (where husband brought action for injuries under federal Longshoremen's and Harbor Workers' Compensation Act, wife had derivative action under general maritime law for loss of consortium and was awarded $39,500 in damages for "change in the parties marital relationship, life style, and sexual relationship").

When an attempt is made to recover for loss of consortium under an insurance policy, the language of that policy may determine whether recovery may be had. See, e.g., Sheffield v. American Indem. Co., 245 S.C. 389, 140 S.E.2d 787 (S.C. 1965) (since wife injured by negligent operation of uninsured automobile was paid full amount limited by uninsured motorist endorsement in case of "bodily injury" to one person, husband, who had no physical injury, could not recover from insurer for consequential damages for loss of consortium and reimbursement for medical expenses arising out of injury to wife, since he had no "bodily injury" within meaning of uninsured endorsement). See also Kizer v. Kinard, 361 S.C. 68, 602 S.E.2d 783 (Ct. App. 2004) (bodily injury claim and loss of consortium claim shared limits of per person liability limits policy); Stewart v. State Farm Mut. Auto. Ins. Co., 341 S.C. 143...