Tort Claims

Wrongful Death
Loss of Consortium

A  “tort” is a civil wrong or injury remedied by the award of money damages.  The most common tort claims arise from the negligence of one person, such as in automobile accidents where one person’s carelessness or reckless driving causes another person’s injury.  The negligent person must compensate the injured person for his or her damages.

The tort actions that have special significance between married persons are “wrongful death” and “loss of consortium” claims.  Neither one has been applied to unmarried cohabitants in Maryland; but the prospect that they may some day be extended to include cohabitants is a real one and merits a brief discussion here.

Wrongful Death

When a person’s death is caused by the wrongful act of another, it may be possible for certain surviving relatives to sue the wrongdoer and recover damages for the loss they sustained.  The measure of damages is generally the “pecuniary” loss suffered by the relatives (i.e., the loss of financial support, services and contributions that can be valued in money which they would have received from the deceased had he or she not been killed).  In Maryland, damages are not limited to pecuniary losses for the death of a “spouse, minor child or parent of a minor child,” and may include such things as mental anguish, emotional pain and suffering, loss of companionship, protection, comfort, advice, counsel or education.

Wrongful death claims were created by statute.  Therefore, requirements differ from state to state.  In Maryland, the only “beneficiaries” who can bring an action for wrongful death are the wife, husband, parent and child of the deceased (“primary beneficiaries”).  If there are no primary beneficiaries, any person related to the deceased person by blood or marriage who was wholly dependent upon the deceased may bring an action.  According to this statutory language, unmarried cohabitants are not beneficiaries.

They do qualify, however, as dependents for purposes of the Workers’ Compensation Act, in which employers compensate survivors for employees’ deaths occurring in the course of employment.  Maryland cases support the concept that the Wrongful Death Act and the Workers’ Compensation Act must be construed together.  However, the definition of the “dependents” who can recover under each act is different and potentially in conflict. 

Until a court opinion decides the question, it is unclear whether an unmarried dependent cohabitant can recover under the Wrongful Death Act.  If she or he qualifies as a dependent under the Workers’ Compensation Act, chances are very good that she or he would be a proper plaintiff in a wrongful death action, despite the “blood or marriage” language in the statute.  (See Benefits, Insurance, Inheritance and Taxes)

Few states grant unmarried cohabitants the right to sue for the wrongful death of their partners.  Only those states which allow “dependents” to sue would be likely to even consider such a claim.  This is an area of law that may undergo some change in the future as more couples choose unmarried family life over marriage.  The term “spouse” in wrongful death statutes, as well as worker’s compensation acts, may give way to include unmarried cohabitants.

Loss of Consortium

The tort “loss of consortium” is a cause of action that until very recently was reserved exclusively to married couples.  It is a tort that has its historical origins in the now disfavored notion that a man acquires a property interest in his wife when he marries her.  If she were to suffer any physical injury by the hand of another that impaired her ability to provide her husband with services, sexual relations, companionship, affection or emotional support, then the deprived husband could sue the person who caused her injuries for money damages.  The husband had lost “consortium.”

This action is now available in most states to wives as well as husbands, and to parents for loss of their children’s consortium.  In Maryland, a loss of consortium claim can only be asserted in a joint action by both spouses for injury to the marital relationship.  It must be tried at the same time as the individual action brought by the injured spouse against the allegedly negligent defendant.[1]

Until a New Jersey federal district court granted consortium rights to unmarried partners in the 1980 case of Bulloch v. United States,[2] it had been universally assumed that legal marriage was a required element of proof in a loss of consortium action. Bulloch is a unique case that will be likely limited to its facts. In Bulloch, Mr. and Mrs. Bulloch married in 1951, and divorced in 1977. Sometime later that year, the Bullochs reunited and decided to live together again. After that reunion, Mr. Bulloch was injured and hospitalized. During the hospitalization, he abandoned his separate living quarters, and after his release from the hospital, he returned to the marital abode. The Bullochs then sued for loss of consortium. The court found that given the equities in that case, the lawsuit could go forward. 

Since that decision, no other court has recognized an unmarried cohabitant’s right to loss of consortium damages.  Few courts have considered the question.  Maryland considered this issue in Gillespie-Linton v. Miles.[3] The Court of Special Appeals considered whether the husband of a woman injured in a car accident could sue for loss of consortium, even though the accident occurred two days before the couple married. The court held that a loss of consortium claim may be asserted only in a joint action for injury to the marital relationship and that the martial relationship must be in existence at the time of the injury. 

Source: This section is drawn from the booklet entitled "Legal Rights of Unmarried Cohabitants in Maryland" produced by and available from The Women's Law Center.  Updated 7/10/01.

Source: Maryland State Law Library (MSLL)                                                                                                Last Legal Update 02/07/08 (PLL/M.A.J)

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