Not everyone who is engaged to be married, living together, or assuming the roles of husband and wife (common law or not) will be entitled to recover for loss of consortium. The claimant must prove a close familial relationship with the victim. Courts should presume that such a relationship exists if the couple fits into one of the above categories, but a myriad of factors should be considered to determine whether the relationship was significant enough to recover. That standard must take into account the duration of the relationship, the degree of mutual dependence, the extent of common contributions to a life together, the extent and quality of shared experience, and whether the plaintiff and the injured person were members of the same household, their emotional reliance on each other, the particulars of their day to day relationship, and the manner in which they related to each other in attending to life's mundane requirements. By adopting this standard for determining whether an intimate familial relationship exists for loss of consortium purposes, the New Mexico Supreme Court puts no additional burden on the finder of fact. Even if the claimant and the victim are actually married, all of this information would need to be weighed when determining the amount of damages anyway.
The husband and son were injured in the first accident, in which the driver rear-ended them. Ten months after this accident, they were rear-ended by the trucker and allegedly sustained more injuries. The husband and his wife lived together for over 30 years and were formally married during the time between these accidents. Before trial, the driver and his employer admitted negligence, but the other defendants did not. The trial court granted a directed verdict on the wife's loss of consortium claim, as she had not been legally married to the husband at the time of the first accident.
May unmarried cohabitants recover against negligent actors for the loss of consortium?
The supreme court affirmed with regard to all claims, except the loss of consortium claim and the verdict of no negligence on the part of the trucker, and remanded the case for a new trial limited to those issues. The court held that for reasons of public policy, unmarried cohabitants could recover against negligent actors for the loss of consortium.