In 2015, same-sex marriage was celebrated on Twitter with the hashtags #MarriageEquality and #LoveWins. Twitter released the top trending topics for 2015 recently and these very same hashtags consistently landed in the top 5 globally. Now you may wonder what this has to do with your personal injury lawyer. In fact, it could be very significant if you suffer personal injuries as a result of the negligence of another.
As background, understand that Florida law provides that the spouse of an injured person may be entitled to money damages. An unmarried dependent can also sue for damages including a permanent loss of services, comfort, companionship and society when their natural or adoptive parent suffer a significant permanent injury as the result of someone’s negligence.
These types of damages are usually referred to as loss of consortium. In English, this basically means the loss of comfort and companionship the spouse suffers because of the injuries caused by another’s negligence. Examples include having to do more chores, going to the doctor with the spouse, not being able to enjoy the same activities the couple did before the injury, and even intimacy.
Consortium claims are derivative in nature, meaning these claims cannot stand alone. If the injured spouse does not bring a claim or a lawsuit, then their spouse is not entitled to damages independently. This right is not based on a law or statute but rather was developed in common law which is the law developed over time by judges deciding similar cases.
These claims are not necessarily brought in every case. In fact, many trial attorneys avoid adding them to the main injury claim for various reasons including the inherent risk of detracting attention form the injury and damages. Another reason is to avoid the potential embarrassment that comes with bringing such a claim including intruding questions into the sex lives and marital harmony of the couple. Many people become shy or even angry when a total stranger asks for details of their intimate lives before and after an injury. But aside from a strategical decision, the spouse of an injured person is absolutely entitled to seek damages so long as they were married at the time of the injury.
On June 26, 2015, the United States Supreme Court ruled in Obergefell v. Hodges and three related cases that same-sex marriage was a Constitutional right. As a result, a same-sex spouse could now bring an action as survivor, defined in part as “decedent’s spouse”, under the Florida Wrongful Death Act. In addition, if a decedent dies intestate, which is without a will, the same-sex spouse would enjoy preference for the appointment as the personal representative of their deceased spouse. The personal representative is the only person who is entitled to bring a wrongful death case under Florida law.
So long as the same-sex spouse was married at the time of the injury, they are now legally entitled to bring a claim for loss of consortium. Interesting legal battles loom over the issue of whether a same-sex partner can claim loss of consortium if they testify that but for the now unconstitutional law, they would have been married at the time of the injury. One thing is certain now – spouses in same-sex marriages are no longer invisible in the eyes of the law when their loved one is injured or fatally injured. #MarriageEquality #LoveWins
Personal injury lawyers should reevaluate their cases in light of the Supreme Court’s decision to determine if Complaint’s need to be amended to add consortium claims for same-sex spouses. Consideration should also be given to claims where a partners would testify that they would have been married if they had been allowed by law. Lastly, litigators will need to consider the potential effect of the general public’s views of same-sex marriage. This is particularly important given the fact that in 2008 over 5 million potential jurors – 60% of Florida voters – voted in favor of a constitutional amendment forbidding same-sex marriage. It is clear that there has been a considerable shift in public opinion over the last seven years, but these facts must be considered on a case by case basis.
Wolfson & Leon is a Miami personal injury law firm located in Miami, Florida that practices entirely in the field of all types of accident, injury, and wrongful death cases. The firm represents the injured and their loved ones. It is a boutique law firm that represents clients, giving them the utmost personal attention. Wolfson lawyers help clients in all parts of injury and wrongful death claims, handling cases from initial investigation, through trial, and even appeals.