What’s your opinion? As someone who could potentially, one day, end-up on a jury listening to a personal injury case, having to render a judgment in a personal injury case. What’s your opinion? Should a gay spouse loss of consortium claim be worth the same, more, or less than a straight spouses’ loss of consortium claim?

Hi, I’m attorney Ben Schwartz,

I have a question for you. In a personal injury case, let’s say a car accident case or a slip-and-fall case, should a gay spouses’ loss of consortium claim be worth less than a straight spouse loss of consortium claim? This is a question that is confronting me this week. I want to know. If you’re out there, you’re watching the video, maybe you are a personal injury lawyer, maybe you’re a lawyer, maybe you’re not a lawyer, I don’t really care. Maybe you’re a trash man, or a teacher, or an astronaut. What’s your opinion? As someone who could potentially, one day, end-up on a jury listening to a personal injury case, having to render a judgment in a personal injury case? What’s your opinion? Should a gay spouse loss of consortium claim be worth the same, more, or less than a straight spouse loss of consortium claim?

Now, here is why I’m asking this question. Let me tell you a story. Let’s say that I have two clients. I’m going to give them some pseudonyms, let’s call them Bob and Jim. Bob and Jim are married; we’re in the state of Delaware. In the state of Delaware, it’s legal to have a same-sex marriage. Bob and Jim are married. Jim’s in a car accident, Bob is not. Bob’s not injured but while Jim is recovering from his injuries, which were quite severe, Bob helps Jim out; Bob picks up the slack. Bob cares for Jim, Bob does all the things that a spouse needs to do while their husband or wife is recovering from substantial injuries from an auto accident. Now we make a claim against the at-fault party and we file a lawsuit against the at-fault party, and we name both Bob and Jim as plaintiffs. One because he was legitimately, physically, severely, catastrophically injured in the car accident and one not because he was injured, but because he has a loss of consortium claim.

My question to you is as a juror who’s sitting in this case, who’s hearing all the evidence, do you award the gay spouse the same amount that you would award a woman if she were the wife of Jim?  That’s my question. Is a gay spouses loss of consortium worth less than a straight spouses’ loss of consortium claim?

I know that from my experience, I make personal injury claims with insurance carriers, in discussing a case with an insurance claims representative, I was told, I don’t know why you’re making the loss of consortium claim in this case. When you have a gay spouse, you know we can evaluate this, but we can’t really offer as much money. Maybe we can’t offer any money because, you know, a jury in Delaware is not going to award a gay spouse any money. It’s not as if you have a straight spouse. If you have a female wife to a male husband who’s been injured in the accident.

So, my question to you is, does that sound right to you? To me, logically, as an attorney, it sounds like discrimination. It sounds like the insurance company is saying we’re going to discriminate against a class of individuals on the basis of their orientation. But at the same time, I can understand what the insurance claim adjuster is telling me.

The claim adjuster is saying, look we make our evaluations, we make our settlements based on what we think a jury is going to do, and in Delaware we think you have a unanimous jury requirement. All the jurors have to vote in favor of the plaintiff. All the jurors have to agree on how much to award the plaintiff and Delaware tends to be a conservative state. There are a lot of religious people and they’re going to look at this gay loss of consortium claim, and they are going to say it’s against the Word of God. We’re not going to give money to a gay spouse. So the insurance company is saying if you can’t get the money out of a jury, you’re not going to get it from a pre-trial settlement.

My question to you is, does that sound right to you? Is that the way society should be? I’m interested to know your thoughts on the topic. As I said, I don’t care if you’re an attorney, a personal injury attorney, not an attorney. Trashman, teacher or astronaut. Whatever you are, whoever you are, I want to know what the feeling in the community is watching this video & listening to these guys’ story.

I’m attorney Ben Schwartz, thanks for watching. Leave a comment, let me know what your thoughts are. Let me know what your feelings are. I very much appreciate it and if you have a question, if you’d like to pose a question to an attorney who has an opinion on just about everything, send me an email below. You give me a good topic, give me a good question. If it’s something I can do a video on, the next thing you know, your question is appearing on a video just like this. Thanks for watching!