Loss of Consortium Part II: How to Apportion
After my blog post on Friday on loss of consortium damages, I received the following comment from "Florida Lawyer" that raises a common concern regarding the apportionment of damages in personal injury cases:
"Do you have any suggestions regarding the handling of a loss of consortium claim in a case where: 1) the injured spouse is totally incapacitated as a result of the accident 2)insurance company is willing to tender limits (limits will not make Plaintiffs whole), and 3) the tortfeasor does not have significant assets to satisfy any potential excess judgment. My dilemma is, for purposes of settlement discussions, how to determine what amount or % of the available funds should be "credited" toward the injured spouse's claim and what amount should be "credited" towards spouse's loss of consortium claim."
Great question, one that does not have an easy answer. This problem usually presents itself with respect to wrongful death beneficiaries. Regrettably, there is no formula. Certainly, I think the true experts are the clients themselves. If they agree on what the split should be - as I would expect they would - then I think you have your answer. Otherwise, each should hire separate counsel and arbitrate the issue, keeping you far away from what could be a conflict of interest. In the unlikely event this is the chosen path, take money out of your fee to hire two lawyers and an arbitrator. It should not cost that much, given the discreet and limited issue of apportionment. Good luck!
