Delaware's car accident fault system: at-fault liability with mandatory PIP

If another driver hit you in Delaware, the first question is usually who pays. Delaware answers that in a way that trips up a lot of people. The state runs an at-fault (tort) system, so the driver who caused the crash is financially responsible for the harm. But Delaware also requires every registered vehicle to carry no-fault personal injury protection, known as PIP, which pays your early medical bills and lost wages no matter who was at fault.¹ That combination puts Delaware in a small group sometimes called "add-on" states: you get quick no-fault money up front, and you keep the full right to sue the person who hit you.

An at-fault state with a no-fault layer

In a true no-fault state like Michigan or Florida, your ability to sue the other driver is limited unless your injuries clear a legal threshold. Delaware has no such threshold. The PIP statute, 21 Del. C. § 2118, requires the coverage but does nothing to restrict your right to bring a claim or a lawsuit against the at-fault driver.¹ You can collect your PIP benefits and still pursue the negligent driver for everything PIP doesn't cover, including pain and suffering and any losses above your PIP limits.

So fault matters in Delaware in the ordinary way. Whoever was negligent pays, and blame gets sorted out through the liability insurance system and, if needed, the courts.

What PIP pays, and when

Every vehicle registered in Delaware must carry PIP with at least $15,000 per person and $30,000 per accident for medical expenses and lost earnings.¹ There's also up to $5,000 in funeral benefits per person.¹ To be covered, the expense has to be incurred within 2 years of the crash.¹

PIP is first-party coverage, so you file it with your own insurer (or the insurer of the car you were riding in) regardless of blame. The statute holds the insurer to firm deadlines. Under 21 Del. C. § 2118B, the company has to send you a claim form within 10 days of learning about the claim, and it has to pay or deny within 30 days of receiving a completed proof of loss.² Miss those deadlines and the overdue amount collects interest, running from 1.5% to 2.5% per month depending on how late the payment is.²

Because there's no injury threshold, PIP is only a starting point. If your medical bills or wage losses run past your PIP limits, that overflow becomes part of your claim against the at-fault driver.

Minimum liability coverage

The at-fault side of the system runs on liability insurance. Delaware's required minimums under 21 Del. C. § 2902 are $25,000 for injury to one person, $50,000 for all injuries in one accident, and $10,000 for property damage, usually written as 25/50/10.³ Those are floors, and they are low. A single serious injury can pass $25,000 fast, which is where the at-fault driver's own assets and your underinsured motorist coverage start to matter.

Uninsured and underinsured drivers

Delaware ties UM/UIM coverage directly to your liability policy. Under 18 Del. C. § 3902, uninsured and underinsured motorist coverage is included at the same limits as your liability coverage unless you reject it in writing on a form the insurer provides.⁴ Insurers also have to offer you higher underinsured limits, up to $100,000 per person and $300,000 per accident.⁴ If the driver who hit you had no insurance, carried too little, or fled the scene, this is often the coverage that actually pays.

Comparative negligence and the 51% rule

Crashes are often partly the other driver's fault and partly yours. Delaware handles that with modified comparative negligence. Under 10 Del. C. § 8132, you can still recover as long as your share of the fault is not greater than the other side's.⁵ Your damages get reduced by your own percentage of fault, so being found 20% responsible turns a $100,000 award into $80,000. Cross the line and you get nothing: if your fault is greater than the combined fault of everyone else, recovery is barred entirely.⁵ That makes the 50/51 split the number that matters, and it's why insurers push to pin a share of the blame on you.

Deadlines that end your claim

Delaware gives you 2 years from the date of the crash to file a personal injury lawsuit under 10 Del. C. § 8119.⁶ Damage to your vehicle carries the same 2-year deadline under 10 Del. C. § 8107.⁷ Miss it and the court will almost always throw the case out, no matter how strong it was. There's a narrow exception: if the injured person was under 18 at the time of the crash, the clock is tolled until they turn 18 under 10 Del. C. § 8116.⁸ PIP's separate 2-year window for incurring covered expenses runs on its own track, so it's easy to blow one deadline while watching another.¹

No damage caps in ordinary crash cases

Delaware does not cap compensatory or punitive damages in a standard car accident case. The heightened punitive-damages statute that sometimes gets cited, 18 Del. C. § 6855, applies only to medical negligence claims, not auto crashes.⁹ In a car case, punitive damages come from the common law and require clear and convincing proof that the at-fault driver acted willfully, wantonly, or recklessly.

Drunk drivers and who you can sue

Fault points squarely at the impaired driver. Beyond the criminal vehicular assault charges a drunk driver faces for hurting someone, that kind of reckless conduct is what can support punitive damages under the common-law standard. What Delaware does not have is a dram shop law. A bar or restaurant that overserves a patron generally cannot be sued by someone that patron later injures off the premises, and Delaware courts have repeatedly declined to create that liability.¹⁰ Your claim runs against the driver, not the business that served them.

Documenting the crash

Fault is proven with evidence, and the police crash report is usually the centerpiece. In Delaware, the report is held by the Delaware State Police Traffic Operations Section, which handles requests by mail for $25 for a standard report and $60 for a fatal-crash report.¹¹ For how to get yours, see our Delaware crash report guide. If your vehicle lost market value even after a solid repair, that's a separate property claim, and our Delaware diminished value page covers how that works.

Sorting out fault, PIP deadlines, and coverage limits at the same time is a lot to carry right after a wreck. If the injuries or the dollar amounts are significant, it's worth talking to a Delaware attorney, and you can find one through our legal directory.

This is general information, not legal advice.

Sources

1. Delaware Code, 21 Del. C. § 2118 (required PIP coverage). https://delcode.delaware.gov/title21/c021/sc01/index.html

2. Delaware Code, 21 Del. C. § 2118B (prompt payment of PIP claims). https://delcode.delaware.gov/title21/c021/sc01/index.html

3. Delaware Code, 21 Del. C. § 2902 (minimum liability limits). https://delcode.delaware.gov/title21/c029/sc01/index.html

4. Delaware Code, 18 Del. C. § 3902 (uninsured and underinsured motorist coverage). https://delcode.delaware.gov/title18/c039/index.html

5. Delaware Code, 10 Del. C. § 8132 (comparative negligence). https://delcode.delaware.gov/title10/c081/index.html

6. Delaware Code, 10 Del. C. § 8119 (personal injury statute of limitations). https://delcode.delaware.gov/title10/c081/index.html

7. Delaware Code, 10 Del. C. § 8107 (property damage statute of limitations). https://delcode.delaware.gov/title10/c081/index.html

8. Delaware Code, 10 Del. C. § 8116 (tolling for minors). https://delcode.delaware.gov/title10/c081/index.html

9. Delaware Code, 18 Del. C. § 6855 (punitive damages, medical negligence). https://delcode.delaware.gov/title18/c068/sc06/index.html

10. Frei v. Jask, Inc., N23C-04-118 VLM (Del. Super. Ct. Sept. 19, 2023), citing Wright v. Moffitt, 437 A.2d 554 (Del. 1981) and Samson v. Smith, 560 A.2d 1024 (Del. 1989). https://courts.delaware.gov/Opinions/Download.aspx?id=353200

11. Delaware State Police, Traffic Operations Section (crash report requests and fees). https://dsp.delaware.gov/traffic-unit/