OTLA Trial Lawyer Spring 2021

8 Trial Lawyer • Spring 2021 By Melina Martinez OTLA Guardian T he COVID-19 pandemic has argu- ably redefined how we live our daily lives. More than ever, families are together working side-by-side either at the “office” or at “school” all while sitting at home. Parents have stepped into the shoes of teachers now that schools and daycare facilities have temporarily closed their doors. All around, people are assuming additional roles and responsi- bilities in their families and households. If anything, this past year should in itself garner further appreciation for loss of consortium claims and their impor- tance. No matter the circumstances, as legal practitioners, we must take the time to peel back each of the intricate layers that make up the lives of our clients and how those lives are forever changed fol- lowing an injury. We should go through the effort of understanding how one’s loss of affection, solace, comfort, companion- ship, support and intimacy can fracture a family. We also should not shy away from seeking to recover damages for a client’s loss of consortium even if it means pursuing that derivative injury as a separate action. A random attack It was a sunny day when “Leslie” went for a run in her neighborhood just as she had done nearly every day. Before ap- proaching the end of her usual jogging route, a crazed driver began to follow Leslie, stalking her and demanding that she move off the road. Despite her efforts to ignore the driver by turning her head and running away, the driver sped up and eventually rammed his vehicle into Les- lie. As a result of the impact, Leslie was lifted onto the hood of the vehicle caus- ing injury to her legs, arms and back. Fortunately, Leslie was able to get up and run away before the driver could cause more damage. Shortly after the attack, the driver was arrested and charged with felony assault. What followed was a yearlong process involving different types of treatment as Leslie could not understand why some- one would viciously attack her. Aside from dealing with the physical pain caused by injuries to her legs and back, Leslie felt as though she could no longer trust other drivers on the road. That meant she could no longer go jogging as fear always creeped up, leaving her Melina Martinez shaken and essentially paralyzed. Leslie also had to endure the criminal process as a victim. She was called upon to provide a witness statement with re- gard to the attack. More damaging, was the plea deal she witnessed. The man who attacked her was given a reduced sentence due to his age. Leslie felt betrayed by the legal system. She further felt her experi- ence was not taken seriously by the court. The trauma of all of these combined experiences left her broken and emotion- ally damaged to the extent she could barely return to her day-to-day activities. The reality was Leslie’s life and the lives of her husband Jeff and their two young children were forever changed after that crazed driver stripped Leslie’s ability to feel safe at home and in her neighborhood. Litigation process Nearly a year after the attack, we sent a formal demand to the driver and his auto insurer. The driver’s insurance policy called for a total payment of $300,000 per accident and a per person policy limit of $100,000. At the time, we had to consider whether engaging in lengthy litigation would be in Leslie’s best interest. She was still undergoing medical treatment in addition to different types of therapy to address her fears and trauma, all while her family attempted to stay together. It simply was not in Leslie’s best inter- est to prolong litigation on her behalf. It Loss of Consortium: A Derivative Injury and Independent Claim