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Can Same-Sex Couples Bring A Claim for Loss of Consortium in a Personal Injury Case?

By Philip M. Snyder

Can same-sex couples bring a claim for loss of consortium in a personal injury case?

As personal injury lawyers in South Florida, Lyons, Snyder & Collin, P.A. is occasionally requested to file consortium claims on behalf of same-sex partners in situations where one partner in a same-sex relationship is injured in an accident by the negligence of another.    Unfortunately, as it stands today, Florida does not recognize claims for loss of consortium in same sex relationships.

What is loss of consortium?

Consortium generally refers to the services, companionship, and affections of a spouse.   Oftentimes, a loss of consortium claim seeks damages as a result of a decreased or limited sexual activity from one spouse as a result of the accident.   Other examples of a loss of consortium may include one spouse taking on more household chores which the injured spouse can no longer perform or a same-sex couple who is unable to partake in physical activities that they routinely enjoyed together such as a yearly family ski trip.

Why does Florida not recognize loss of consortium claims for same-sex couples?

In the case of Bashaway v. Chaney Bros, Inc., 987 So.2d 93 (Fla. 1st 2008), the First District Court of Appeals held that same-sex partners could not bring a claim for a loss of consortium even though the Plaintiff, Judith Bashaway, “maintained a long-term committed relationship” with her partner Melinda Garrison.   Garrison suffered injuries in an automobile accident and sued the other driver and his employer, Cheney Bros, Inc.   Included in the lawsuit was a loss of consortium claim seeking damages. 

In denying Bashaway’s claim, the Court reasoned that an essential element in the loss of consortium claim is that “the claimant had a legally recognized relationship” with the injured person.   A “bright-line” rule exists that “the existence of the legal relationship fosters the claim.”  Moreover, right before the Court issued its ruling in Bashaway, Florida legislation’s enacted its own Defense of Marriage Act (Proposition 2).  Proposition 2 protects marriage as the legal union of only one man and one woman as husband and wife and provides that no other legal union that is treated as marriage shall be recognized.  Seemingly, the Court placed significant weight that Proposition 2 was a statement of public policy that the Court could not ignore in responding to Bashaway’s argument that an exception be created to the normal loss of consortium requirements.

Moving forward

In 2011, the Obama administration said that it will no longer defend the constitutionality of a Federal Law banning the recognition of same-sex marriage as the Defense of Marriage Act (DOMA) violates the equal protection component of the 5th Amendment.   Without any Federal roadblocks standing in their way, it is incumbent upon same-sex couples to elect public officials who will seek to legalize same-sex marriages.   Once same-sex marriages are recognized in Florida, it is highly probable that personal injury lawyers will begin to file loss of consortium claims on behalf of same-sex couples as the Court’s reasoning for denying Bashaway’s claim will be moot.

The authors Philip M. Snyder and Marc P. Lyons are founding partner of Lyons, Snyder & Collin, P.A. in Fort Lauderdale, Florida.   The Fort Lauderdale law firm of Lyons, Snyder & Collin, P.A. handles all personal injury, criminal defense, and family law matters.    The Wilton Manors personal injury lawyers of Lyons, Snyder & Collin, P.A. are located at 312 Southeast 17th Street, Third Floor, Fort Lauderdale, Florida 33316.  Telephone: 954.462.8035.