Here’s an introduction to the laws and court rules that control your Delaware personal injury case.
You've been injured in Delaware and you're thinking about bringing a personal injury (PI) insurance claim or lawsuit. But you don't know much about the Delaware laws and court rules that apply to PI cases. Where and how do you file a lawsuit? How long do you have to file? What if you were partly to blame for the accident that caused your injuries?
We'll answer those questions and more as we help you understand the. basics of Delaware personal injury law.
Delaware's Auto Insurance Requirements
Delaware is a hybrid auto insurance state, adopting features of both no-fault and fault-based insurance systems. Let's take a closer look.
Delaware's Hybrid PIP Add-On System
Delaware is a fault-based insurance state but with a twist. Drivers must buy no-fault personal injury protection (PIP) coverage, in addition to the state-required liability insurance. For up to two years after an accident, PIP pays each covered person's medical bills, lost wages, and certain other out-of-pocket expenses, up to the coverage limits.
No Limit on Right to Sue Other Drivers
In no-fault states, injury thresholds limit an injured person's ability to pursue an at-fault driver for compensation. Not so in Delaware. If you're injured in Delaware by a negligent (careless) driver, you can bring an insurance claim or a lawsuit against that driver, even if you collected PIP benefits.
You're not allowed to seek payment of expenses already paid by PIP. But if you have medical expenses, lost wages, or other out-of-pocket expenses not covered by PIP, you can collect those from the at-fault driver. In addition, you can recover for injuries like pain and suffering, emotional distress, and more.
(Learn more about Delaware's auto insurance requirements.)
Delaware's Statute of Limitations for Personal Injury Lawsuits
In Delaware, as in every state, statutes of limitations put a deadline on how long you have to file a PI lawsuit in court. We'll begin with the general rule that applies to most Delaware PI cases. Then we'll take a look at some (but not all) of the special rules and exceptions that might apply.
General Rule: Two Years From the Date of Injury
Delaware's general rule for most PI cases can be found in Del. Code tit. 10, § 8119 (2024). Any lawsuit "for the recovery of damages upon a claim for alleged personal injuries" must be filed in court within two years from "the date upon which it is claimed that such alleged injuries were sustained… ."
This two-year limitation period covers most suits involving personal injuries caused by:
- car accidents
- premises liability, including slip-and-fall and trip-and-fall claims
- dangerous products, called product liability cases, and
- negligence (carelessness) or intentional misconduct like a battery.
Special Limitation Periods for Certain Cases
Some cases have different statutes of limitations. Here are a few examples.
Wrongful Death Cases
A Delaware wrongful death lawsuit must be filed in court within two years, usually from the date of death. (Del. Code tit. 10, § 8107 (2024).)
(Find out more about Delaware wrongful death cases.)
Medical Malpractice Cases
As a general rule, a Delaware medical malpractice case must be filed in court within two years from "the date upon which such injury occurred… ." (Del. Code tit. 18, § 6856 (2024).) If you didn't know you were injured and "could not in the exercise of reasonable diligence have…discovered" the injury, you can file your malpractice suit within three years from the date of your injury. (Del. Code tit. 18, § 6856(1) (2024).)
(Learn more about Delaware's medical malpractice laws.)
Claims Against Municipalities
Suits against Delaware counties or cities might be subject to a special notice requirement. When a notice requirement exists, you're required to give the municipality written notice of your injury, along with when and where it happened, within a specified time. Additional information might also be required, so be sure to check the law for details. Failure to give the required notice usually means you're not allowed to file a lawsuit.
Del. Code tit. 10, § 4013(c) (2024) provides that any municipality can enact a pre-lawsuit notice requirement as long as the injured person has at least one year from the date of the occurrence to give notice.
Finally, note that there's a notice requirement for suits against the City of Wilmington. At least one year before filing a lawsuit, you must notify the Mayor of Wilmington "of the time, place, cause and character of the injuries" you claim to have suffered. (Del. Code tit. 10, § 8124 (2024).) Failure to provide this notice means you're prohibited from filing a lawsuit against Wilmington.
Exceptions to the Statutes of Limitations
Delaware law has several exceptions to the statutes of limitations. These exceptions "toll," or temporarily stop, the applicable statute of limitations from running. Here are a few examples.
Minors
A minor who suffers a personal injury has three years from their 18th birthday to file a lawsuit. (Del. Code tit. 10, § 8116 (2024).)
Note that other laws might require a minor to file suit more quickly. For instance, Delaware's medical malpractice statute of limitations says that a child younger than six years old has until the later of their sixth birthday or the date the malpractice statute of limitations expires to file suit. (Del. Code tit. 18, § 6856(2) (2024).)
Absence From the State
If the party you're planning to sue (called the "defendant") is outside of Delaware when you're injured, or leaves the state after causing your injury, the statute of limitations doesn't run for the period that the defendant is absent from the state. (Del. Code tit. 10, § 8117 (2024).)
Discovery Rule
In most personal injury cases, the statute of limitations starts to run on the date you're injured. But what if you don't know right away that you're hurt? In that case, the "discovery rule" might give you some extra time to file your case in court.
Under Delaware's discovery rule, the statute of limitations doesn't begin to run until you discover—or you should have discovered, had you been reasonably diligent—that you were injured. But even if the discovery rule applies, there's still going to be a deadline, called a "statute of repose," that limits your time to file.
If you think the discovery rule might apply in your case, you should get the advice of an experienced Delaware personal injury lawyer right away.
Where and How to File a Personal Injury Lawsuit in Delaware
Your personal injury case is a type of civil lawsuit. Delaware's laws and court rules tell you where and how to file your case in court.
Where to File
In Delaware, two courts have the authority to hear PI lawsuits.
Superior Court
The trial court with the authority to hear all personal injury lawsuits is called the Superior Court. Most PI lawsuits are filed in this court. Lawsuits filed there must comply with the Rules of Civil Procedure for the Superior Court. The Delaware Judiciary recommends that you be represented by a lawyer in Superior Court. The Superior Court sits in every Delaware county.
Court of Common Pleas
If you're asking for damages (compensation for your injuries) of not more than $75,000, you can file your PI lawsuit in the Court of Common Pleas. Lawsuits filed in this court must comply with the Rules of Civil Procedure for the Court of Common Pleas.
Like the Superior Court, the Court of Common Pleas sits in every Delaware County. If you decide to file your case in this court, you can take advantage of several court-provided, self-help resources, including:
- an explanation of what happens in civil lawsuits, and
- information, legal forms, and instructions to help you with your case.
How to File
In Delaware, you start a PI lawsuit by filing these documents with the court clerk:
- your complaint
- a case information statement (a form that provides information about the case)
- answers to Form 30 interrogatories (written questions you must answer in writing and under oath), together with other information required by Rule 3(h) of the Superior Court rules
- a summons (an order directing the defendant to appear in court and defend the case), and
- a praecipe (a form identifying the defendants and where they can be served with the lawsuit).
You should have a lawyer prepare these documents for you, although you're allowed to do it yourself.
In separate, numbered paragraphs, your complaint should describe:
- the parties involved in the case
- when, where, and how you were injured
- your injuries
- what the defendant did wrong that caused your injuries; and
- the relief (usually damages) that you want the court to award you.
The court rules will tell you if there are specific things you should (or shouldn't) include in your complaint.
Once you've filed these documents with the court, your PI lawsuit has started. But you still need to serve a copy of the complaint and summons on each defendant. The court rules explain how service must be done. Be sure to follow the rules carefully.
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