When someone suffers a serious injury due to another party's negligence, the harm extends beyond the injured person. A spouse may lose the companionship, affection, support, and partnership they once enjoyed. Loss of consortium is a distinct legal claim that recognizes these intangible losses and allows the spouse of an injured person to seek separate compensation.
McCormick & Murphy represents both injured parties and their spouses in personal injury cases throughout Colorado. This guide explains how loss of consortium works in Colorado, who can bring these claims, what must be proven, and how damages are evaluated.
What Is Loss of Consortium?
Loss of consortium is a claim for damages brought by the spouse of someone who has been injured due to a third party's negligence or intentional wrongdoing. Unlike the injured person's claim for medical expenses, lost wages, and pain and suffering, the loss of consortium claim compensates the spouse for the loss of the relationship as it existed before the injury.
These losses include:
- Loss of companionship and emotional support
- Loss of affection and intimacy
- Loss of assistance with household responsibilities
- Loss of the spouse's ability to provide guidance and moral support
- Changes in the marital relationship caused by the injury
Loss of consortium claims typically arise in cases involving catastrophic injuries — such as traumatic brain injuries, spinal cord injuries, severe burns, or amputations — that permanently alter the injured person's physical or mental capacity. These claims may also be pursued in wrongful death cases, where the loss is total and permanent.
Who Can Bring a Loss of Consortium Claim in Colorado?
In Colorado, loss of consortium claims are most commonly brought by spouses. A valid legal marriage must have existed at the time of the injury. Common-law marriages recognized under Colorado law also qualify.
The claim does not stand alone. It is typically joined with the injured person's underlying personal injury lawsuit. The spouse does not file a separate lawsuit but instead asserts the loss of consortium claim as part of the same case. This procedural approach ensures that all damages flowing from the defendant's conduct are addressed in one action.
Colorado law does not broadly extend loss of consortium claims to children, parents, or unmarried partners, though wrongful death statutes provide separate pathways for certain family members to recover damages when a loved one is killed.
Elements of a Loss of Consortium Claim
To succeed on a claim for loss of consortium in Colorado, the spouse must establish the following elements:
Valid Marriage
The claimant must prove that a legally recognized marriage existed at the time of the injury. This includes ceremonial marriages and common-law marriages established under Colorado law. Documentation such as a marriage certificate or evidence of mutual consent and cohabitation may be required.
Injury Caused by Another Party's Negligence or Wrongful Act
The underlying personal injury claim must succeed. The spouse's loss of consortium claim depends entirely on proving that the defendant's negligence or intentional conduct caused the injury to the other spouse. If the injured spouse's claim fails, the loss of consortium claim fails as well.
Loss of the Marital Relationship
The claimant must describe how the injury altered the marital relationship. This includes testimony about changes in affection, companionship, household contributions, and intimacy. Evidence may include:
- Personal testimony from the claimant
- Testimony from the injured spouse, if able
- Testimony from family members, friends, or counselors who observed the relationship before and after the injury
- Medical records or expert testimony linking the injury to changes in the spouse's capacity for relationship participation
Proving these losses requires candid, sometimes deeply personal testimony. Courts understand that these damages are inherently difficult to quantify but recognize them as real and compensable.
Causation
The spouse must show that the defendant's conduct — not some other cause — resulted in the loss of consortium. This is generally straightforward if the underlying injury claim is successful, as the same causation evidence supports both claims.
Damages Available in Loss of Consortium Claims
Damages for loss of consortium are compensatory and aim to address the non-economic harm suffered by the spouse. There is no fixed formula, and each case is evaluated based on its particular facts.
Factors considered in valuing loss of consortium damages include:
- The nature and extent of the injured spouse's injuries
- The permanence of the injury and its long-term impact on the relationship
- The length of the marriage before the injury
- The quality of the marital relationship before the injury
- The claimant's age and life expectancy
- The injured spouse's age and life expectancy
- Changes in household roles, caregiving responsibilities, and family dynamics
Because these damages are inherently subjective, the presentation of credible, detailed testimony is essential. The spouse must be prepared to describe the relationship as it was and as it is now, and to explain the depth of what has been lost.
Loss of Consortium in Wrongful Death Cases
When a spouse dies due to another party's negligence, the surviving spouse may pursue damages for loss of consortium as part of a wrongful death claim. Colorado's wrongful death statute allows designated family members to recover for a range of harms, including loss of companionship, comfort, and society.
In wrongful death cases, the loss is absolute. The surviving spouse will never again experience the relationship. Courts recognize the profound and permanent nature of this loss, and damages may reflect both the past deprivation and the future years the couple would have spent together.
Challenges in Loss of Consortium Claims
Loss of consortium claims present unique challenges. The harm is intangible and personal. There are no medical bills or repair estimates to establish value. Instead, the claim depends on testimony, credibility, and the court's or jury's willingness to recognize the importance of the marital relationship.
Defense attorneys may attempt to minimize these claims by suggesting that the marriage was already troubled, that the claimant has adjusted well, or that the loss is speculative. Thorough preparation, including gathering corroborating testimony and evidence of the pre-injury relationship, is critical to countering these defenses.
Additionally, courts may scrutinize whether the loss is truly attributable to the injury or whether other factors — such as pre-existing marital issues or unrelated stressors — contributed to the change in the relationship.
Procedural Considerations
Loss of consortium claims are typically filed at the same time as the underlying personal injury claim and by the same legal team. The spouse asserting loss of consortium is often joined as a co-plaintiff. This ensures that all claims arising from the same incident are resolved in a unified proceeding and avoids the inefficiency and risk of inconsistent verdicts that could result from separate lawsuits.
In settlement negotiations, loss of consortium damages are part of the total recovery sought. Insurers and defendants may attempt to minimize or dismiss these claims, but experienced counsel can effectively advocate for their value and ensure that the spouse's losses are not overlooked.
Importance of Experienced Legal Representation
Loss of consortium claims require careful handling. They involve sensitive, personal testimony and demand an advocate who understands how to present these claims persuasively while respecting the dignity of the claimant.
At McCormick & Murphy, we treat loss of consortium claims with the seriousness they deserve. We work closely with clients to understand the full impact of an injury on the family, gather supporting evidence, and build a compelling case for fair compensation. Whether in negotiation or at trial, we ensure that the spouse's loss is recognized and valued.
Speak with a Colorado Personal Injury Attorney
If your spouse has been seriously injured due to someone else's negligence, you may have a claim for loss of consortium in addition to your spouse's personal injury claim. McCormick & Murphy offers free consultations and works on a contingency fee basis — you pay no attorney fees unless we recover compensation for you. Contact us today to discuss your case.