Can I Sue for Loss of Consortium if the Driver Has Insurance Coverage?

Full question:

Please help as this is VERY important and I need some real advice from someone who really knows...Let's say the other driver (who was at fault) has $15,000/$30,000 limit per person/per accident under Bodily Injury Liability, can I, (the legal wife) make a separate claim for 'loss of consortium' in the state of California? Additional Note: My husband was in an accident but I was not with him.

• Category: Damages
• Date: 04/07/2025
• State: California

Answer:

Under California law, there are two broad categories of damages available: Economic and Non-Economic. Damages for loss of consortium fall into the non-economic category and are often the most controversial part of any auto accident case, partly because they are not easily defined or quantified, and partly because they can make up a very substantial part of any injured party’s overall recovery. In auto accident cases, economic damages may include:

Medical expenses – past and future
Lost wages – past and future
Lost earning capacity
Loss of ability to provide household services
Damage to real property (i.e., a car hits a house)
Loss of use of real property
Damage to personal property (your car, for example)
Loss or destruction of personal property
Damage to personal property having a special value (i.e., family photos)
Loss of use of personal property
Lost profits

Non-economic damages may include:

Physical pain
Mental suffering
Emotional distress
Loss of consortium (loss of spousal companionship and services)

A loss of consortium claim may be made as part of a civil lawsuit for personal injury if an insurance settlement is declined. California operates under a “tort liability system” that governs how pain and suffering claims are to be litigated. In short, the tort liability system allows the jury to decide, exclusively, the amount of damages to be paid to someone for car accident injuries. There are no restrictions on who can or cannot sue for personal injury damages. The jury looks at the amount of money the plaintiff is requesting for each item of harm and decides if that amount is reasonable.

California Jury Instructions for Non-Economic Damages:

[Name of plaintiff] claims that [he/she] has been harmed by the injury to [his/her] [husband/wife]. If you decide that [name of injured spouse] has proved [his/her] claim against [name of defendant], you also must decide how much money, if any, will reasonably compensate [name of plaintiff] for loss of [his/her] [husband/wife]’s companionship and services, including:

1. The loss of love, companionship, comfort, care, assistance, protection, affection, society, moral support; and

2. The loss of the enjoyment of sexual relations [or the ability to have children].

[Name of plaintiff] may recover for harm [he/she] proves [he/she] has suffered to date and for harm [he/she] is reasonably certain to suffer in the future. No fixed standard exists for deciding the amount of these damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense.

Do not include in your award any compensation for the following:

1. The loss of financial support from [name of injured spouse];

2. Personal services, such as nursing, that [name of plaintiff] has provided or will provide to [name of injured spouse]; or

3. Any loss of earnings that [name of plaintiff] has suffered by giving up employment to take care of [name of injured spouse].
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