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?
We'll answer those questions and more as we help you understand these basics of Delaware personal injury law:
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 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.
Each Delaware-registered motor vehicle must have PIP coverage of at least:
(Del. Code tit. 21, § 2118(a)(2) (2023).)
PIP covers each occupant of an insured vehicle, together with all others—like pedestrians, bystanders, and bicyclists—who were injured in an accident and who weren't in another vehicle.
In addition to the required PIP coverage, every motor vehicle must be covered by liability insurance of at least these amounts per accident:
(Del. Code tit. 21, § 2902(b) (2023).)
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.)
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.
Delaware's general rule for most PI cases can be found in Del. Code tit. 10, § 8119 (2023). 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:
Some cases have different statutes of limitations. Here are a few examples.
(Find out more about Delaware wrongful death 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 (2023).) 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) (2023).)
(Learn more about Delaware's medical malpractice laws.)
Suits against Delaware counties or cities might be subject to a special notice requirement. Del. Code tit. 10, § 4013(c) (2023) 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 (2023).) Failure to provide this notice means you're prohibited from filing a lawsuit against Wilmington.
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.
A minor who suffers a personal injury has three years from their 18th birthday to file a lawsuit. (Del. Code tit. 10, § 8116 (2023).)
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 under 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) (2023).)
If the party you're planning to sue (called the "defendant") 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 (2023).)
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.
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.
In Delaware, two courts have the authority to hear PI lawsuits.
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. Typically, you'll file your PI case in the Superior Court for the county where you were injured.
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:
In Delaware, you start a PI lawsuit by filing these documents with the court clerk:
You must prepare your own complaint, unless you have a lawyer do it for you. In separate, numbered paragraphs, your complaint should describe:
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.
To win your PI case, you must prove that the defendant was legally at fault. Often, though, the defendant will claim that you were partly (or completely) to blame for what happened. This legal defense, called "comparative negligence," is available in Delaware. Let's see how it works.
Delaware is a "modified comparative negligence" state. Under Delaware law, you can recover part of your damages as long as you're not more than 50% to blame for your injuries. Your share of the fault simply reduces the amount of damages you can collect. If you're 51% or more at fault, you get zero damages under Delaware's modified comparative negligence rule. (Del. Code tit. 10, § 8132 (2023).)
Suppose you're shopping in a grocery store. As you walk down an aisle, you don't notice a puddle of liquid on the floor. Your foot slips in the liquid and you fall, breaking your ankle. You sue the grocery store for negligence. The store responds that you should have watched where you were going more carefully and that you're partly to blame for the accident.
After a trial, the jury finds your total damages are $60,000. The jury agrees that you should be held partly to blame and assigns 25% of the fault to you. The store is found 75% responsible. How much in damages can you collect?
Because you were 25% at fault, you must deduct that amount from your total damages: $60,000 - 25% ($15,000) = $45,000. The grocery store's insurance company will write you a check for that amount.
What if the jury decided you were 51% (or more) to blame? In that event, you'd collect nothing.
Many states limit ("cap") the damages an injured person can collect in a PI case. Damages for injuries like pain and suffering and emotional distress are favorite cap targets. Some states impose caps in all cases. Others apply them only to certain types of cases, like medical malpractice claims.
Generally speaking, Delaware doesn't cap PI damages. In most cases, then, if you succeed with your PI claim you can collect the full amount of your personal injury damages.
There's an exception for lawsuits against a Delaware county or city, or their employees. Total damages in those cases can't exceed $300,000 "for any and all claims arising out of a single occurrence," unless the municipality has liability insurance in a greater amount. (Del. Code. tit. 10, § 4013 (2023).)