If your husband or spouse has an accident in Naples, Florida due to a third party’s actions you may have a claim against that third party even though the accident didn’t happen directly to you.
There are two bases under which you can file a claim: 1) Loss of consortium and 2) Negligent Infliction of Emotional Distress.
Loss of consortium is an old-timey way of saying, “the spouse is no longer as good of a spouse any more.” The accident may have caused you to have lost affection, solace, comfort, companionship, assistance and a sexual relationship. Because of these losses, to whatever degree, you can sue the person who caused the accident.
In most cases, the injured spouse sues the person that caused the accident and the husband or wife becomes an additional party to the case with their claim of loss of consortium.
You must be married to be have a loss of consortium claim. You cannot make a claim for loss of consortium if you are merely in a long term relationship without being married even though the effects of your partner’s accident are identical. Bashaway v. Cheney Bros. Inc. 987 So. 2d93 (Fla. 1st DCA 2008)
What if you are in the process of a divorce while your spouse has this accident? You can still pursue a claim of loss of consortium but your “loss” will obviously be weighed differently by the courts due to the pending divorce. Additionally, personal injury cases can often take much longer to finalize than a divorce case. Upon your actual divorce, your loss of consortium claim disappears in the eyes of the law. Your spouse’s personal injury claim, however, may be considered marital property and thus subject to distribution in the divorce, therefore it is very important to advise your divorce attorney of the pending personal injury case so that your divorce attorney can adequately factor the personal injury case into your divorce case.
Negligent infliction of emotional distress is a claim you can make if you suffer physical injury as a result of emotional distress arising from witnessing the death or injury of a loved one. Champion vs. Gray, 478 So. 2d 17 (Fla. 1985) Typically, you need to be present for the spouse’s accident and to have some physical ailment like fainting resulting from having been exposed to the accident scene but courts now allow a claim of negligent infliction of emotional distress if the injury to the witness-spouse occurred some time after viewing the traumatic scene. Zell v. Meek, 665 So. 2d 1048.
Florida courts are split as to whether you need to be actually married to your partner to make a claim of negligent infliction of emotional distress.
If you file for divorce before or after the accident which caused the negligent infliction of emotional distress, your claim will likely survive as the courts will consider the emotional distress you suffered at the time of the accident (when you were married).
It’s important to understand the difference between these two claims, loss of consortium and negligent infliction of emotional distress, which a spouse of an injured party has.
In a loss of consortium case, you do not need to be injured. Your damages are the injuries that your spouse suffered and that you are now caring for, etc. There is no need to be hurt emotionally by the injury or to have seen the accident.
Negligent infliction of emotional distress is a claim about you, personally. You, personally, need to have some physical manifestation of your emotional distress and you need to have been present at the time of the accident (or that the physical manifestation occurred shortly thereafter).
In addition to a loss consortium claim you may also be entitled to the marital portion of your spouse’s injury settlement, which I discuss at length here.
These matters are not typically handled by a divorce attorney like myself but, rather, by a personal injury attorney. Feel free to contact my Naples, Florida family law office and I will refer you to an excellent personal injury attorney in the Naples, Florida area.
What a divorce attorney does do, is consider these accidents and their potential settlements as marital and non-marital assets when calculating the final divorce settlement. So, please advise your attorney of any incidents which may result in a lawsuit that you or your spouse have had that are settled or still pending.