Legal Question in Personal Injury in Massachusetts

Re: lawsuit entitlement

I agree with Attorney Larrabee's advice regarding retaining your own lawyer to represent you in your claim for "loss of consortium" damages. If the lawyer representing both you and your "ex" seems "wishy-washy" to you in how he discusses your rights, it may well be because he finds himslef in a conflict of interest in trying to represent both of you and feels his primary loyalty is to your "ex", who's claim is probabaly worth much more than your's.

Beyond that, however, a much more important question not yet answered is whether or not you have any right, as a partner in the former marriage, to a share of whatever settlement your "ex" gets for his injury. This would be beyond whatever you are entitled to collect for your "loss of consortium" claim. And the answer is, "probably". Generally speaking, any settlement a person receives in a personal injury claim for injuries sustained while married is considered a "marital asset" that is subject to division during the divorce just like all other marital assets (the house, the cars, the bank accounts, etc.). You should talk to your divorce lawyer about your rights in a share of your "ex's" anticipated settlement and how to go about protecting those rights.

Good Luck.

Re: lawsuit entitlement

You refer to the lawyer as your husband's lawyer. It is likely that the lawyer is also representing you, and is therefore your lawyer as well. Your question raises an interesting issue as to whether the lawyer can adequately represent both you and your ex-husband in light of the change in your marital status.

You might do well to consult with an attorney of your own selection to ensure that your rights are protected in the event that a settlement offer is made.

As a co-plaintiff, your assent is required to any settlement of your claim. If the lawyer is representing both you and your ex-husband, the lawyer has an obligation to fairly represent the interests of both, and cannot increase the value of one plaintiff's claim by unfairly reducing the other's claim. One way to minimize this problem is to specify one demand for you and one demand for your husband. You have a right to control the amount demanded and the amount eventually accepted in any settlement of your claim. Of course, you would want to consider the advice of your lawyer on this subject as your lawyer probably has more knowledge and skill in appropriately valuing your claim.

Having a single demand for the both of you now that you are divorced and are not part of a single economic unit would seem to present a problem.

In the settling the case, the defendant's and any insurer's primary concern will be the total payout on the case, and not the apportionment of the claim between the primary claim and your loss of consortium claim.