Tennessee law permits the spouse of an injured person to seek an award of damages for loss of consortium from the tortfeasor. “Consortium” is defined in Tennessee law as “the conjugal fellowship of husband and wife, and the right of each to the company, cooperation, affection and aid of the other in every conjugal relation.”[1] The claim is derivative, but still a separate claim from that of the physically injured spouse.[2] Thus, in personal injury cases, it is a distinct cause of action vested solely in the spouse.[3] The right to bring an action for loss of consortium is also part of the damages in wrongful death cases.[4] The recovery of loss of consortium damages in both personal injury and wrongful death cases is classified as “non-economic damages”[5] and has been capped by statute.[6] In addition, the damages appear to be reduced for the comparative fault of the injured party and, in fact, can be barred if the injured party’s fault is 50 percent or more.[7]

The cause of action in personal injury cases existed at common law but is also statutory.[8] The claimant must prove that he or she is the legal spouse of the injured party.[9] A relatively recent attempt to recover for loss of consortium by a man who was on the path to changing his gender was rejected because, inter alia, “he had retained his reproductive organs and was for all intents and purposes a man, thereby rendering his marriage to [the physically injured person] Mr. Duffer, a man, invalid and his claim for loss of consortium without merit.”[10]

By practice and later by law, Tennessee has permitted marriage only between a man and a woman[11] and the state has refused to recognize same-sex marriages even if legal in another state or a foreign country.[12] These laws have now been declared unconstitutional and those of the same gender who want to marry cannot be denied a marriage license on that basis.[13] Thus, Tennessee must now not only permit same-sex couples to marry, but must also recognize same-sex marriages of other states.[14]

Negligence does not discriminate: same-sex married couples will face the same tragedies as opposite-sex couples. A spouse will die in a car wreck, be injured by a defective product, or lose a limb because of a medical error. Within the next 18 to 24 months, Mike will be seeking loss of consortium damages arising from injuries to his husband David, and Mary will do the same because of the death of her wife Beth.

That Tennessee law will provide the right to a remedy for loss of consortium for one in a same-sex marriage is without question. The statute creates the cause of action for loss of consortium for the “spouse” of the injured party.[15] People married to one another have always been and likely will continue to be known as “spouses,” and thus, I predict the Tennessee courts will readily recognize the right of one member of a same-sex couple to assert a loss of consortium claim just as if he or she were in an opposite-sex marriage.[16]

The wisdom of making such a claim whenever the law permits it to be made is another question. Although the views of Tennesseans on the subject have changed significantly in the last 20 years, no one would seriously dispute that a good number of those on the jury panel will have strongly held views on the subject that would not be, should we say, “plaintiff-friendly.” A lawyer will need to exercise reasoned judgment on whether to make such a claim.

A claim that might be readily filed in Nashville may need to be shelved in Newport or Camden. If a claim is not asserted because of fear of prejudice, the lawyer may need to file a motion in limine to prohibit reference to the same-sex marriage.[17] The cost of winning that motion may end up being the same-sex spouse not being called to the witness stand.[18] Filing such a motion is a judgment call, as is the decision to call the spouse to the stand.

Some might argue that recommending that a client withhold asserting a claim because of the likely prejudice of some number of jurors indicates a lack of backbone or worse. Baloney. Prudent lawyers are frequently called upon to make judgments about which claims to assert and what evidence to introduce. A loss of consortium claim of a same-sex couple in some venues in Tennessee has no chance of success, regardless of the merit, and creates a real risk of tainting and perhaps even destroying the claim of the physically injured person.

So, the new court ruling means that lawyers will be called upon to do what they always have done: attempt to understand the views of the populace in the venue, understand the merit and value of asserting a given claim, study the pros and cons of making the claim, and make an informed recommendation to the clients about whether the claim should be pursued. If the loss of consortium claim is pursued in a same-sex marriage, look for extended voir dire on the issue, especially for the next couple of decades.

Notes

1. Jackson v. Miller, 776 S.W.2d 115, 116-17 (Tenn. Ct. App. 1989) (citation omitted).
2. Hunley v. Silver Furniture Mfg. Co., 38 S.W.3d 555, 557 (Tenn. 2001).
3. Id. at 557-58.
4. Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593 (Tenn. 1999).
5. Tenn. Code Ann. § 29-39-101(2).
6. Tenn. Code Ann. § 29-39-102(e). For purposes of the damages cap, a spouse’s loss of consortium damages are lumped into the non-economic damages of the injured spouse.
7. Tenn. Code Ann. § 29-39-102(e); Tuggle v. Allright Parking Systems Inc., 922 S.W.2d 105 (Tenn. 1996).
8. Tenn. Code Ann. §25-1-106 (“There shall exist in cases where such damages are proved by a spouse, a right to recover for loss of consortium.”). To learn the history of loss of consortium claims in Tennessee, read Taylor v. Beard, 104 S.W.3d 507 (Tenn. 2003) where you will learn, for example, that originally only husbands could bring such a claim.
9. Duffer v. Keystops LLC, No. M2011-01484-COA-R3-CV (Tenn. Ct. App. July 31, 2011).
10. Id. at fn. 1 (citing Tenn. Code Ann. §§ 36-3-113 and 25-1-106).
11. Tenn. Const., Art. XI, § 18; Tenn. Code Ann. § 36-3-113(b).
12. Tenn. Code Ann. § 36-3-113(d).
13. Obergefell v. Hodges, Docket No. 14-556 (USSC June 26, 2015). The Tennessee case is No. 14-562 and was consolidated for hearing with that of Obergefell, an Ohio resident.
14. Id.
15. Tenn. Code Ann. §25-1-106.
16. The same is true for those in marriages where one or both spouses are transgender, including those who have begun or completed sexual reassignment surgery.
17. Tenn. R. Evid. 403 would govern, and the court would weigh the relevance of the information against any undue prejudice.
18. Expect the opposing party to argue that the marriage between the party and the spouse is relevant on the issue of bias, if not more, and thus if the spouse takes the witness stand he or she could be cross-examined on the point.

JOHN A. DAY of Brentwood represents plaintiffs in personal injury and wrongful death cases. He worries about lots and lots of things that will adversely impact the future of our society, but marriage between two people who love one another is not on his worry list.