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Introduction
Personal injury lawsuits are taxing on even the strongest of families. Between the lost wages, extensive medical expenses, and loss of earning capacity, the injured party often has a long and arduous road to recovery, which affects not only the individual, but their loved ones as well. It is common that a spouse will personally provide care and recovery services, rather than hire a nurse or health care practitioner to perform the work. This, even at the cost of taking time off of work and sacrificing income in order to provide the necessary care. The good news is that this does not have to be a total loss to the family! With a well informed attorney, a claim for “family services” damages can be included as part of the damages calculation in a personal injury lawsuit and the family can be compensated for all of their contributions.
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What Steps Should I Take Before Bringing This Claim?
The plaintiff and family members will need to be interviewed regarding the types of services provided and the number of hours. In some cases, the number of hours might be minimal. In that situation, it is probably best not to pursue a claim for this element of damages. In other cases, the services provided by family members can be substantial, and this element of damages may even extend into the future. Services to be considered include nursing services, transportation, meal preparation, household cleaning, and home repairs or modifications.
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So How Do These Types of Damages Work?
The purpose behind allowing “Family Services” damages is to award compensation to a plaintiff for nursing, household care, transportation, or other such related services provided by a family member during their period of recovery. It is a form of past economic damages for services already rendered, but may also consider future need for the continuation of these services. Recovery for the reasonable value of services gratuitously rendered by a member of the family is permitted, even though the plaintiff made no actual payment for these services. Howells v. North American Transportation & Trading Co., 24 Wash. 689, 64 P. 786 (1901), (proper measure of damages is the reasonable value of the services rendered by the family member, not the value of the family member's lost time from own business). There are two main issues that are usually raised by the defense in response to a claim for these types of damages: 1)To whom does the claim belong? (2)How should the damages be measured?
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How Should The Damages Be Measured?
The measure of damages under this theory is unrelated to the family member’s lost wages while providing care for the injured party. Instead, Washington law is clear that the damages are equivalent to the value of the services provided as if the plaintiff had actually hired somebody to perform the work instead of using the family member. In Howell v. North American Transport and Trading Co., 24 Wash. 689, 64 P. 786 (1901), the Washington Supreme Court held that in an action for damages caused by injuries to plaintiff's wife, the value of the husband's services in attending on his wife must be measured by the value of the services of a competent nurse, and not by the value of the time lost from his business pursuits. These are just a few examples of the general premise that a plaintiff should not be punished for accepting care and services from a family member rather than hiring somebody to perform the same work.
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Who does the claim belong to?
While most of the case law tends to stray toward the husband/wife relationship, there has been no authority that has limited the types of family relationships that “Family Services” damages applies to. In particular, caretakers of injured children would seem to be the next most likely scenario. The WA Supreme Court, in Schurk v. Christensen, 80 Wn.2d 652, 497 P.2d 937 (1972), held that the parents of an injured 5-year-old girl were allowed to recover for what they would have paid for nursing services which they themselves provided during their care for her. In Nichols v. Hodges, 385 So.2d 298 (La. App. 1980), the court held that in an action to recover for personal injuries sustained in automobile-truck collision, award of present value of lost wages of plaintiff, who had to quit job to care for daughter permanently incapacitated in collision, made in lieu of much higher salary of licensed practical nurse, whose place in daughter's care would be filled by plaintiff, was proper.
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Replacement Services
Replacement Services fall into the same vein as Family Services in terms of damages. The idea is very much the same. In this scenario, the plaintiff has had to pay somebody for replacement services for something he would’ve normally done himself, due to his injuries (i.e. housecleaning, home maintenance, yard work). In this case, a 3rd party would have been hired to do the work, rather than having a family member step in to provide it. These commonly arise in situations in which a “do-it-yourselfer” plaintiff might be in the middle of a home remodeling project or be building a new home at the time of an injury, and it may not be possible to put the project on hold indefinitely while the plaintiff recovers from an injury. In such a case, the plaintiff might need to hire a contractor to complete work. In other cases, the plaintiff may need to hire a house cleaner or yard maintenance service to do work that the plaintiff otherwise would have done.
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Conclusion
An often overlooked form of economic damages, “Family Services” and “Replacement Services” damages are a very important part as they allow the plaintiff to recover at least some of the costs incurred from potentially hours and hours of loving care and assistance from family members who otherwise might have gone uncompensated. This also allows for family members to have the option of electing to personally care for the injured party, rather than having to fork out large sums of money to hire a caretaker to perform work they are capable of doing themselves. In any case where a family member has devoted their own personal time toward caring for an injured plaintiff, an investigation toward a possible “Family Services” damages claim is worth looking into. If the plaintiff has been forced, due to his injury, to hire a third party to perform work he used to be able to do himself, then a “Replacement Services” damages claim may be a worth a second look.
