Parent, Child and Spouse - The Loss of Consortium Claim in Massachusetts - Part 1 Spouses

W. Thomas Smith

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When a family member sustains serious injuries, the whole family can suffer. The family injury extends beyond the economic losses where a wage earner is incapacitated and beyond out-of pocket medical expenses or care expenses. A serious injury to a family member can cause real and lasting harm to others in the family. The day-to-day trauma of watching a loved one's suffering and disability takes a toll on even the most resilient of families. For this reason, the law recognizes the right, in certain selected situations, of a family member of someone injured by the actions of a wrong-doer to sue the wrong-doer for their own injury. Massachusetts courts describe this type of claim as a loss of consortium claim.

Traditionally, the law provided that a husband had the right to bring a claim against a wrong-doer when his wife suffered injuries. Massachusetts extended this right to either spouse in the landmark case of Diaz vs. Eli Lilly. Diaz asked the question, "A spouse suffers bodily injuries through the negligence of a third party. Does the other spouse have a claim against the tortfeasor for a loss of consortium that results from the injuries?" and answered it resoundingly, 'Yes'. The Massachusetts Supreme Judicial Court defined the damages requiring compensation as loss of the spouse's "services, society, affection, companionship, [and] relations."

Following Diaz, the question arose whether this right to claim loss of consortium existed for a committed but not married relationship. Our Supreme Judicial Court answered the question in Feliciano vs. Rosemar Silver Company holding that a legal married relationship at the time of the injury was required to have a right to sue for loss of consortium. Even where the couple married after the date of injury but before the trial, there was no right to a loss of consortium claim.

After the decision in Goodridge providing same-sex couples with the right to marry in Massachusetts, the holding in Feliciano was tested by a same-sex couple who did not have the right to be married at the time of the injury, but married shortly after the Goodridge decision. The Massachusetts Supreme Judicial Court reaffirmed Feliciano, holding that even in this circumstance, the legal status of being married was required as of the date of the injury in order to have a loss of consortium claim. Charron vs. Amaral,

Additional Resources

Parent, Child and Spouse - The Loss of Consortium Claim in Massachusetts - Part 1 Spouses

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