Loss of Consortium Defined

A spouse’s “loss of consortium is comprised of her "own physical, psychological and emotional pain and anguish which results when her husband is negligently injured to the extent that he is no longer capable of providing the love, affection, companionship, comfort or sexual relations concomitant with a normal married life.” (Gapusan v. Jay (1998) 66 Cal.App.4th 734, 742.) “While triggered by the spouse's injury, a loss of consortium claim is separate and distinct, and not merely derivative or collateral to the spouse's cause of action.” (Id.) The right to consortium at issue here are [complainants] rights, not Plaintiffs. (See Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal. 3d 382, 405 (“These are her rights, not his.”).)

Pleading Requirements

A loss of consortium cause of action requires plaintiff to plead:

1. a valid and lawful marriage between the plaintiff and injured party, at time of injury;
2. tortious injury to the plaintiff's spouse;
3. loss of consortium suffered by plaintiff; and
4. loss proximately caused by defendant's act.

(See Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927 see also Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, 596 n.16 [claim for loss of consortium fails, where it is derivative of, or dependent upon, other causes of action that fail]; see Meighan v. Shore (1995) 34 Cal.App.4th 1025, 1034-1035 stating “an unsuccessful personal injury suit by the physically injured spouse acts as an estoppel that bars the spouse who would claim damages for loss of consortium”.)

However, a loss of consortium action may be maintained even absent a claim by the injured victim so long as plaintiff pleads and proves an actionable tortious injury to his or her spouse (or registered domestic partner) and resulting loss of consortium. (See Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746.)

Valid for Both Spouses

It has long been the rule that, “in California each spouse has a cause of action for loss of consortium....” (Rodriguez v. Bethlehem Steel Corp., 12 Cal.3d 382, 408 (1974).) “The concept of consortium includes not only loss of support or services; it also embraces such elements as love, companionship, comfort, affection, society, sexual relations, the moral support each spouse gives the other through the triumph and despair of life, and the deprivation of a spouse’s physical assistance in operating and maintaining the family home.” Ledger v. Tippitt, 164 Cal.App.3d 625, 633 (1985), disapproved on other ground in Elden v. Sheldon, 46 Cal.3d 267, 277 (1988).

Furthermore, “[a] cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.” (Vanhooser, 206 Cal.App.4th at 927.) Thus, the facts upon which the first and second causes of action are based going to overlap.

Separate Claims and Liability Limits

The appellate court considered the issue of whether a husband’s loss of consortium claim constituted a separate bodily injury within the meaning of the subject policy. (United Services Automobile Assn. v. Warner (1976) 64 Cal.App.3d 957 at 961.) The Warner relevant limit of liability policy language is quoted below:

The limit of bodily injury liability stated in the declarations as applicable to ‘each person’ is the limit of the company’s liability for all damages, including damages for care and loss of services, arising out of bodily injury sustained by one person as the result of any one occurrence; the limit of such liability stated in the declarations as applicable to ‘each occurrence’ is, subject to the above provision respecting each person, the total limit of the company’s liability for all such damages arising out of bodily injury sustained by two or more persons as the result of any one occurrence.

(Warner, supra, at p. 961.)

The Warner court held that the defendant husband’s loss of consortium claim was “clearly sustained because of injuries to one person,” i.e., the defendant wife injured in the automobile accident. (Id. at 964.) Thus, the court held the policy limit applicable to both the defendant wife’s claim for bodily injuries and the defendant husband’s claim for loss of consortium was the policy’s $50,000 per person limit. (Id. at p. 965; see also Mercury Ins. Co. v. Ayala (2004) 116 Cal.App.4th 1198, 1202 (“Ayala”) [holding that the “per person limit applies;” “[n]umerous cases beginning with... Warner have construed similar language in liability policies, and have found that the language is unambiguous and means what Mercury, and we, say that it means.”].)