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Currently Viewing Posts Tagged Loss of Consortium

“Wilson, I’m Sorry”

     In  “Cast Away” Tom Hanks plays Chuck Noland, as the only actor on screen,  throughout most of the movie. Somehow, he carries the movie  except for a Wilson brand volleyball. He spends over 1500 days on the island alone, with “Wilson”.

     During the time he is stuck on the island, he contemplates suicide many times; going as far as making a test dummy, to toss off the cliff, as he worked toward his plan to die. Wilson was his only companion, and ultimately impacted his decision to not give up.

     He became so attached to Wilson that he took the volleyball with him on his ultimate escape raft. “They” fought through waves, storms and even whales. At one point, Noland falls asleep to the rocking of the waves and somehow, despite being tremendously secured to the raft, Wilson falls off the perch and begins floating away.

     Noland wakes up and soon realizes that Wilson is missing. He begins to scream, “Wilson, where are you”. Soon, he sees Wilson several yards away in the ocean. Noland, without thought, jumps off the raft to rescue Wilson until he comes  to the conclusion that he cannot swim to “rescue” Wilson, without losing the raft and his own life.

     Yes, I admit it. At that point, I actually felt myself getting a bit choked up as Noland began to sob uncontrollably and apologize for letting Wilson down, and not getting Wilson home.

     In the world of insurance and accident law, loss is evaluated and a worth or fair market value is assigned. Big Business and those that want to restrict access to the Courtroom, constantly talk about restrictions on damages and a certainty of liability and expense.

     It reminds me of the memo that came out in  1973, that was known as Ford’s “Pinto Memo”. At the time, Ford management was dealing with the possible dangers of the Pinto automobile. Information became available that people were dying in crashes, as a result of cars easily rolling over, and fuel leakage/fires.

     The memo dealt with the cost of modification to fix the fuel tank problem. The memo showed that the total estimated cost to fix the cars would be about $11 per car or a total of $137.5 million.

     Then, the memo costed out expected litigation costs and settlement payouts, to crash victims or their families and estates if the repairs were not made.

     It was deemed cheaper not to fix the Pinto; But, instead, just absorb the expense of estimated lawsuit payouts, which was an estimated $49.53 million. By not making the necessary modification, Ford expected to save about 90 Million.

     Big Business is constructed to turn profits for the shareholder. However, the law allows damages that take other factors into consideration,  like loss of enjoyment of life, emotional damages; and, when necessary, punishment damages.

     When politicians talk about making their state friendly to business, by having caps and restrictions to the Courtroom; what they are really saying is that everything should be looked upon as a fixable expense. It is “Ford Memo” thinking. 

     In “Cast Away” the loss of Wilson wasn’t just the loss of a volleyball. There was a loss of companionship. It’s not always what you lose.  Sometimes, maybe consideration should be given to what you are left with.

Loss of Consortium:Impact on Family

     Plastic surgeon Dr. Maxwell Maltz tells the story of a woman who came to him for help. She told the doctor about her husband, who had been injured in a fire while trying to save his parents from a burning house.

     Unfortunately, the man’s rescue attempt was unsuccessful and his parents died in the fire. It left the man’s face burned and disfigured. He was physically and emotionally scarred. He then believed that his pain and disfigurement must have been because God was punishing him. After that, the man would not go out in public and didn’t even want his wife to see him.

     When the wife relayed this story, Dr Maltz told her not to worry, “I can restore his face”. The wife did not react as Dr. Maltz expected because she knew that her husband had repeatedly refused help, and that he would not seek treatment from Dr. Maltz.

     Dr. Maltz then asked why she had come to see him, if her husband would not let him operate to fix the disfigurement. “Because” she said, “I want you to disfigure my face so that I can be like him. If I can share his pain, then maybe he will let me back in his life.”

     Dr. Maltz denied her request but was so moved by her sincere request that he was determined to speak to the husband. Knocking on the man’s bedroom door, he called out loudly, “I’m a plastic surgeon, and I want you to know that I can restore your face.”

     There was no response from the other side of the door. “Please come out”.  Again, no response from the man.

     Still speaking through the door, Dr Maltz then decided to tell the man about his wife’s request. “She wants me to disfigure her face, to make her like yours, in the hope that you will let her back into your life. That’s how much she loves you.”

     There was a brief moment of silence. Then, slowly, the doorknob began to turn.

     In Dr. Maltz’s story, we see the injuries to the man. We also see the impact of those injuries on his wife. I can think of many instances, when injuries suffered by my clients, have greatly impacted others in their family.

     In many states, the laws allow a claim for a loss of consortium;  These loss of consortium laws allow the spouse of the injured person; and sometimes, other family members impacted by the injuries or disability, to bring a related claim for damages, that is connected to the underlying injured client’s claim. In Virginia, the insurance industry has done a good job in making sure that the law does not recognize such claims as an avenue of recovery. Virginia does not recognize any claim for loss of consortium. 

     When you hear politicians brag about some bill that they have sponsored, to make Virginia  “business friendly”; that sometimes means that there will be  state economic benefits and more jobs. However, it may really mean that there will be restrictions on a person’s right to economic recovery and and that there will be caps on recovery damages.

     Such “business friendly” politicians may brag about their support of such caps and restrictions. In doing so, they may really be  relieving the true responsible party (defendant) from paying for the damages that have been caused. When that happens; instead of the responsible party paying for the damages; more likely, either the government or you and me become responsible.

     In serious cases, the injuries still exist. Lives and families are still impacted. Behind some closed doors, there are people that have no legal recovery to pursue.

A Relationship Loss

     There are some legal terms that have made it into the category of “legal terms that everyone knows”.  Loss of Consortium has made that list. Plus, it’s one of those topics that sometimes makes defense attorneys grin and snarl at the same time, because they think that it is a topic that can cause discomfort in a deposition.

     Loss of Consortium really represents a benefit or service of a family relationship, that has been caused as a harm by some wrongdoer. It usually is thought of as some kind of intimate loss between a husband and wife. Hence the snickers of the defense attorney. This classification is why many states do not recognize it as a damage or loss, in an accident claim.

     Virginia is one of the states that does not recognize  loss of consortium as a recoverable damage. Part of that could be because of the strength of the insurance lobby in Virginia.  Of course, Virginia is never aggressive in recognizing right of recovery. There’s no claim for parental loss of love and affection between kids, and no recognition of loss between spouses.

     It really comes down to how the hurt of one person, can effect another family member. That was on display during the 1992 Barcelona Olympics.

     Derek Redmond was the favorite from England, expected to win the four-hundred-meter race. Halfway through the race, Derek felt a searing pain through his left leg. He crumpled to the ground with a torn hamstring and his hopes and dreams went crumpling within him.

     All the other runners went racing by. As medical attendants came racing to his assistance, Derek fought his way to his feet and began hopping his way to the finish line.

     As he reached the stretch, a big man came out of the crowd. He was wearing a T-shirt that said, “Have you hugged your child today?”  His hat read, “Just Do It”.  The man was Derek’s father.

     Mr Redmond said, “You don’t have to do this”. “Yes I do” said son to father. “Well then, we’re going to finish this together”. Together, they moved slowly to the finish line, well behind the other competitors, while the crowd stood and cheered. It wasn’t some inner strength that caused Derek’s father to come out of the stands. It was the pain of his son.

     In time of difficulty, others are impacted.  Family members of some of my clients, visibly and emotionally suffer, just like the injured. When a tortfeasor is responsible for harms, they should be made to pay for all harms. Loss of Consortium should not be categorized as a snicker. It should be a recognizable damage,  instead of an ignored loss.

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