WPI 32.04 Measure of Damages—Loss of Consortium—Spouse/State Registered Domestic Partner

For actions in which loss of spousal or state registered domestic partner consortium is claimed in an injury case, this phrase is to be inserted in the noneconomic damages section of the damage instruction (WPI 30.01.01, WPI 30.02.01, or WPI 30.03.01) when the evidence justifies its use.

In an action involving the death of a spouse or state registered domestic partner, use WPI 31.02.01 (Measure of Damages—Wrongful Death—RCW 4.20.010—Action for Benefit of Spouse/State Registered Domestic Partner).

Use bracketed material as applicable.

In 2019, the Legislature substantially amended statutes applicable to wrongful death actions. RCW 4.20.010, which previously allowed statutory beneficiaries such as spouses to assert an action simply for “damages,” was amended to provide an action “for the economic and noneconomic damages sustained by the beneficiaries listed in RCW 4.20.020 … in such amounts as determined by a trier of fact to be just under all the circumstances of the case.” Laws of 2019, Chapter 59, § 1. The amendments retroactively apply to “all claims that are not time barred, as well as any claims pending in any court on the effective date of this section.” Laws of 2019, Chapter 59, § 6.

Loss of consortium by domestic partners. The Legislature amended the statute on wrongful death actions, RCW 4.20.020, to specify that consortium may be recovered in such cases by state registered domestic partners. See Laws of 2007, Chapter 156, § 29. For injury actions, however, there is no corresponding statute addressing loss of consortium, so the Legislature has not expressly addressed this issue. The WPI Committee believes that the Legislature's enactment for wrongful death cases would be implied for the personal injury actions, which are governed by the common law. See generally DeWolf & Allen, 16 Washington Practice, Tort Law and Practice § 6.33 (5th ed.). Additionally, the 2009 Legislature passed a bill stating its intent that state registered domestic partners are to be treated the same as spouses, including by extending to domestic partners the common law rights that apply to spouses. See Laws of 2009, Chapter 521, § 1. For these reasons, domestic partners were added to the pattern instruction above as part of the WPI Committee's 2009 revisions.

Loss of consortium by spouse. Loss of consortium is a proper element of damage in an action involving injury to a spouse. Lundgren v. Whitney's, Inc., 94 Wn.2d 91, 96, 614 P.2d 1272 (1980).

Loss of consortium generally. Loss of consortium is the separate claim of the “deprived” spouse suffering the loss and any recovery received is that spouse's property. See Reichelt v. Johns-Manville Corp., 107 Wn.2d 761, 776, 733 P.2d 530 (1987). See the Comment to WPI 30.01 (Measure of Damages—Personal and Property—No Contributory Negligence) for a discussion relating to the listing of such claims separately in the verdict form. Because loss of consortium is the separate claim of the deprived spouse, the “impaired” spouse, who suffered the primary injury, need not be joined as a party. See Reichelt, 107 Wn.2d at 776 (citing Lund v. Caple, 100 Wn.2d 739, 743–44, 675 P.2d 226 (1984)) (holding that a claim for loss of consortium does not necessarily accrue when the impaired spouse's claim accrues).

Nevertheless, a loss of consortium action by the deprived spouse will not be recognized if an action for the underlying injury to the impaired spouse cannot be brought or is prohibited or abolished. See Provost v. Puget Sound Power & Light Co., 103 Wn.2d 750, 755–56, 696 P.2d 1238 (1985) (worker's compensation was the exclusive remedy for an injured employee and barred an action for loss of consortium by his spouse against his employer); Lund, 100 Wn.2d 739 (the prohibition on actions for alienation of affections extends to actions for alleged sexual misconduct in which the only damages sought are for loss of consortium); Lien v. Barnett, 58 Wn.App. 680, 685, 794 P.2d 865 (1990) (dismissing the action and holding that “Lien's lawsuit, as that in Lund, is in essence a substitution for an abolished alienation of affections action that as a matter of public policy is barred”); Conradt v. Four Star Promotions, Inc., 45 Wn.App. 847, 853, 728 P.2d 617 (1986) (wife was prevented from maintaining an action for loss of consortium resulting from injuries sustained by husband in a demolition race because prior to the race the husband had signed a release form).

Contributory fault. RCW 4.22.020 provides in part that “in an action brought for wrongful death or loss of consortium, the contributory fault of the decedent or injured person shall be imputed to the claimant in that action.” The statute as amended in 1987 overrules Christie v. Maxwell, 40 Wn.App. 40, 42, 696 P.2d 1256 (1985), which had held that under RCW 4.22.020, as it was then written, the contributory fault of the impaired spouse could not be imputed to the deprived spouse in an action for loss of consortium.