Survival of Loss of Consortium Claim
Do loss of consortium claims survive the death of the person making the claim for lost consortium so that their estate can make the claim?
Answer: I don't know of an Oklahoma case on the survival of a loss of consortium cause of action. I would, however, argue by analogy Clements v. ITT Hartford, 1999 OK CIV APP 6, 973 P.2d 902.That case holds that a claim for emotional distress arising from a bad faith claim survives under our survival statute, 12 O.S. 1051 as an action for "injury to the person . . . or personal estate." It seems to me a loss of consortium case would be closely analogous.
If you look to the law of other jurisdictions which have ruled on the issue, the results are mixed. 1 CJS Abatement and Revival Sec. 152 says: "While there is authority that under a survival statute consortium should be viewed as type of "personal property" interest and a claim for loss of consortium can be maintained after the plaintiff's death, there is also authority that the right to consortium or, in particular, performance of services, although denominated a property right, is a purely personal right arising from marriage and a cause of action for loss of consortium does not survive since no compensation can be given to the injured party." However, this is consistent with Clements, which says the emotional distress claim will not survive at common law but does under the Oklahoma Statute.
Posted on Tue, March 12, 2013
by Travis Law Office filed under