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Are Personal Injury Claims Marital assets in Divorce in MA?

Personal Injury awards as assets in divorce claimsPersonal Injury awards attributed to loss of earning Capacity and medical expenses are capable of being divided by the Massachusetts’ Courts in a divorce. The important case  of Dalessio v. Dalessio is set forth below


In the Massachusetts divorce and personal injury case of DALESSIO vs. DALESSIO, Mr. Dalessio was injured in a serious industrial accident in Massachusetts. Sadly, he lost his left arm as a result of the mishap. Mr. Dalessio filed a Personal Injury / Product Liability Negligence case in a MA Court against the company who manufactured the machine that caused his amputation. After a Jury trial, on the merits, the Mass. jury awarded Mr. Dalessio 3 million and his wife 1 million. The total injury judgment ended up amounted to 7 Million when interest was calculated. The wife’s I million award was for loss of consortium.

“The manufacturer’s liability insurance was insufficient to cover the entire judgment, however, so the parties accepted a structured settlement with a present cash value of approximately $3,000,000.” DALESSIO vs. DALESSIO

Does the State of Massachusetts recognize Loss of consortium claims of husband or wife as a result of an injury of their spouse?

In 1973, in DIAZvs.ELI LILLY the Massachusetts Supreme Judicial Court sitting in Boston determined that a claim for loss of consortium of a spouse is a viable claim in MA. The Court set forth the pertinent issue when it stated “A spouse suffers bodily injuries through the negligence of a third party. Does the other spouse have a claim against the tortfeasor for a loss of consortium that results from the injuries? DIAZvs.ELI LILLY AND COMPANY. 364 Mass. 153 (1973), 302 N.E.2d 555

The Court answer was an unequivocal ‘yes’. Loss of Consortium claims in injury cases in Mass. are alive and well. The Top Court held “that either spouse has a claim for loss of consortium shown to arise from personal injury of the other spouse caused by negligence of a third person” Id.

A loss of consortium claim could be raised by a Husband or Wife as a result of the injury of the spouse in any type of Massachusetts accident including truck accident, slip and fall, motorcycle accidents and car crash claim. Wikepedia defines loss of consortium as “Loss of consortium is a term used in the law of torts that refers to the deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor. Loss of consortium arising from personal injuries was recognized under the English common law.”

Loss of consortium

The parents of a minor child may even be eligible to bring a loss of consortium claims as a result of the injury of their child in a motor vehicle accident, Bicycle accident, Tractor Trailer Collision, premises liability accident or other personal injury case. Section 85X states “The parents of a minor child or an adult child who is dependent on his parents for support shall have a cause of action for loss of consortium of the child who has been seriously injured against any person who is legally responsible for causing such injury.” CHAPTER 231 Section 85X.

The Mass. Top Court in Dalessio stated “After providing for attorneys’ fees, the workers’ compensation subrogation claim, and expenses, the terms of the settlement were essentially as follows. In exchange for releases, the husband received: (1) an annuity of $6,000 monthly for life, with a present cash value of $801,363; and (2) a cash lump sum of $514,529. The wife received: (1) an annuity of $2,000 monthly for life, with a present cash value of $271,032; and (2) a cash lump sum of $200,000. The parties combined their lump sum payments (with the exception of $14,529 withheld by the husband) and opened a joint investment account. At the time of trial, this account was valued at $716,141.”

Lower court decision

Decision of the lower Court: “The judge made a number of orders relating to the custody of the children, child support, and property division. At issue here, however, is the judge’s division of the proceeds of the personal injury suit. The judge first concluded that the husband’s interest in the proceeds of the lawsuit was part of his divisible estate under G. L. c. 208, § 34.(fn2) The judge then assigned a portion of the husband’s proceeds from the lawsuit to the wife. Specifically, the judge ordered that the wife was to retain her annuity and receive in addition $500,152 from the joint investment account. The husband was to retain his annuity and $286,456 from the joint investment account. Any interest on the value of the joint investment account above its $716,141 value was to be divided 60%-40% between the husband and wife respectively.”

The Dalessio court ruled

The Dalessio court ruled, “Accordingly, we hold that the proceeds of the husband’s personal injury suit, at least to the extent of recovery for loss of earning capacity and medical expenses, and including the annuity, are within his divisible estate under § 34. The judge did not err in admitting actuarial evidence of the present value of the annuity, or in including it within the husband’s assignable estate.”

“The most common types of personal injury claims are road traffic accidents, accidents at work, tripping accidents, assault claims, accidents in the home, on a cruise ship, product defect accidents (product liability) and holiday accidents. The term personal injury also incorporates medical and dental accidents (which lead to numerous medical negligence claims every year) and conditions that are often classified as industrial disease cases, including asbestosis and peritoneal mesothelioma, chest diseases (e.g., emphysema, pneumoconiosis, silicosis, chronic bronchitis, asthma, chronic obstructive pulmonary disease, and chronic obstructive airways disease), vibration white finger, occupational deafness, occupational stress, contact dermatitis, and repetitive strain injury cases. Depending upon the intent or negligence of a responsible party, the injured party may be entitled to monetary compensation from that party through a settlement or a judgment. In the United States, this system is complex and controversial, with critics calling for various forms of tort reform. Attorneys often represent clients on a “contingent fee basis” in which the attorney’s fee is a percentage of the plaintiff’s eventual compensation, payable when the case is resolved, with no payment necessary if the case is unsuccessful. Typically, a Plaintiff attorney charges 1/3 of the proceeds recovered if a case is settled out of court or 40 percent if the matter proceeds to trial. These sums are negotiable before hiring an attorney. Legal aid from the government may not be available; for example it was largely abolished in England in the late 1990s and replaced with arrangements whereby the client would be charged no fee if her or his case was unsuccessful.[2]”


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