Consortium Claims, Children

Before the enactment of Florida Statute §768.0415 in 1988, a child could not recover for the loss of parental consortium even if the child’s parent had been severely injured through the fault of another. This led to situations where children with parents who suffered catastrophic injuries were unable to attain any compensation for the loss of their injured parents’ support, guidance, care and affection. The unfair situation changed in 1988 when the Florida Legislature enacted Florida Statute §768.0415, which created a separate cause of action for children whose parents suffered significant injuries that resulted in permanent total disabilities. As a result of the enactment of that law, children may now recover for their loss of consortium. Florida Statute §768.0415, entitled “Liability for Injury to Parent”, states as follows: A person who, through negligence, causes significant permanent injury to the natural or adoptive parent of an unmarried dependent resulting in a permanent total disability shall be liable to the dependent for damages, including damages for permanent loss of services, comfort, companionship, and society. Even though this law took effect for any negligent act that occurred on or after October 1, 1988, to-date there are still many trial practitioners that are not aware of this act or who routinely omit children’s consortium claims when representing severely injured parents. An attorney representing a parent that is severely disabled or permanently injured should remember that the children have a valid cause of action for their loss of parental consortium. A trial attorney must discuss this with his or her client and a joint decision should be made on whether to proceed with the parental consortium claim on behalf of the children. At times, counsel may need to seek the appointment of a guardian ad litem to decide this matter if a conflict of interest arises between the interest of the parents and the children. Counsel representing defendants in cases involving significantly and permanently injured parents should remember to thoroughly discover the basis for any alleged claim for consortium brought by the children against the defendant. Standard consortium interrogatories frequently sent by defense counsel to plaintiffs regarding spousal consortium claims can easily be amended to fit the scenario for a child’s consortium claim. Children’s consortium claims may prove to be significant and should be thoroughly evaluated and developed by trial counsel. Attorneys handling these types of cases should consider hiring appropriate experts to maximize or minimize the impact of these types of claims.