Filing a car accident lawsuit in Delaware

A Delaware crash claim runs on a specific set of state rules: how long you have to sue, how fault gets divided, what your own policy pays before anyone argues about the other driver, and what a jury is allowed to award. Here is what actually governs a car accident lawsuit in Delaware, with the statute behind each number.

You have two years, and the clock is strict

The deadline to file a personal injury lawsuit in Delaware is two years from the date of the crash.¹ Miss it, and the court will almost certainly throw the case out no matter how badly you were hurt. The same two-year window applies to a claim for damage to your vehicle or other property, which the code treats as injury to personal property.²

There is one important exception. If the injured person was under 18 at the time of the crash, the clock is paused (tolled) during that "disability of infancy," and the case can be brought up to three years after the disability is removed.³ For an adult, two years is two years. Because evidence disappears and witnesses forget, waiting until month 23 is a bad idea even when you technically still can.

Delaware is an at-fault, modified-comparative state

Delaware is a traditional at-fault (tort) state. The driver who caused the crash, and that driver's insurer, answer for the harm, and to recover you have to show the other driver was negligent.

What sets Delaware apart from a pure-fault state is how it treats a plaintiff who was partly to blame. Under the comparative negligence statute, being partly at fault does not automatically end your case. You can still recover as long as your share of the fault is not greater than the other driver's, or the combined fault of everyone you sue.⁴ Cross into 51 percent and recovery is barred. Below that line, your award drops in proportion to your own negligence. If a jury values your damages at $100,000 and finds you 30 percent responsible, you collect $70,000.

Your own PIP coverage pays first, with no threshold

Before any fight over the other driver begins, Delaware makes your own policy step in. Every vehicle registered in the state has to carry Personal Injury Protection (PIP): at least $15,000 per person and $30,000 per accident for medical bills and lost wages, plus up to $5,000 in funeral benefits.⁵ PIP covers reasonable expenses incurred within two years of the crash, and it applies regardless of who caused the wreck.

The statute puts real deadlines on the insurer. It has to send you a claim form within 10 days of getting notice, and it has to pay or deny within 30 days of receiving a completed proof of loss. When it drags its feet, interest penalties accrue monthly, climbing from 1.5 percent to 2.5 percent the longer the money sits unpaid.⁶

Delaware's version of no-fault is unusually claimant-friendly on one point: there is no injury threshold. Collecting PIP does not lock you out of court. You can take your PIP benefits and still sue the at-fault driver for everything PIP did not cover, pain and suffering included, without first proving your injuries crossed some seriousness line.

The insurance behind the claim

Delaware sets the minimum liability limits a driver must carry at 25/50/10: $25,000 for bodily injury to one person, $50,000 per accident, and $10,000 for property damage.⁷ Those are floors, not typical policy sizes, and they are often too small for a serious injury, which is what makes the next coverage matter.

Uninsured and underinsured motorist coverage (UM/UIM) is built into every Delaware auto policy automatically, at the same limits as your liability coverage, unless you reject it in writing on a form the insurer provides.⁸ Insurers also have to offer you the chance to buy higher UIM protection, up to $100,000 per person and $300,000 per accident. If the driver who hit you had no insurance or not enough, this is often where your recovery actually comes from, so it is worth checking your own declarations page.

What you can recover, and the cap that isn't there

There is no cap on compensatory damages in an ordinary Delaware car accident case. Medical bills, lost income, future care, pain and suffering: a jury can award what the evidence supports.

Punitive damages are available too, but the bar is high. Delaware follows the common-law rule that punitive damages require willful, wanton, or reckless conduct, not ordinary carelessness. You may run across a tougher "clear and convincing" punitive standard at 18 Del. C. § 6855; that statute is written for medical negligence claims against health-care providers and does not reach auto accidents.⁹ A car-crash punitive claim rises or falls on the common-law recklessness standard instead.

Special situations Delaware handles its own way

Distracted driving. Delaware bans holding a phone for calls, texting, browsing, or games while the vehicle is moving, and it is a primary offense, so police can pull you over for that alone. The civil penalty is $100 for a first offense and $200 to $300 for a repeat within two years.¹⁰ A cited distracted driver is strong evidence of negligence in your civil case.

Motorcycles. Helmet use is required for any rider or passenger under 19, and for anyone, at any age, during the first two years after getting a motorcycle endorsement issued on or after July 30, 2023.¹¹ Long-endorsed older riders have to carry a helmet and wear eye protection but are not required to wear the helmet itself.

Drunk drivers and bars. Delaware has no dram shop law. Its Supreme Court held in Wright v. Moffitt that there is no statutory or common-law claim against a tavern for serving a patron who later causes harm, and it left that policy choice to the legislature.¹² The drunk driver stays fully liable, and because impaired driving can meet the wanton or reckless standard, punitive damages are often on the table against that driver personally.

Getting the evidence you'll need

The official crash report is written by the responding agency and requested through the Delaware State Police Traffic Operations Section, which handles mail-in requests at $25 for a standard report and $60 for a fatal-crash report.¹³ For the mechanics of pulling yours, see the Delaware crash reports page.

If your car is worth less now because it carries an accident history, that is a separate claim from the repair bill; the Delaware diminished value page covers how that works. And when the numbers get serious or liability is contested, talk to a lawyer who handles these cases. You can start at the legal directory.

This article is general information about Delaware law, not legal advice.

Sources

1. 10 Del. C. § 8119, personal-injury statute of limitations (Delaware Code). https://delcode.delaware.gov/title10/c081/index.html

2. 10 Del. C. § 8107, injury to personal property and wrongful death (Delaware Code). https://delcode.delaware.gov/title10/c081/index.html

3. 10 Del. C. § 8116, tolling for infancy or incompetency (Delaware Code). https://delcode.delaware.gov/title10/c081/index.html

4. 10 Del. C. § 8132, comparative negligence (Delaware Code). https://delcode.delaware.gov/title10/c081/index.html

5. 21 Del. C. § 2118, required PIP coverage (Delaware Code). https://delcode.delaware.gov/title21/c021/sc01/index.html

6. 21 Del. C. § 2118B, PIP claim processing and interest penalties (Delaware Code). https://delcode.delaware.gov/title21/c021/sc01/index.html

7. 21 Del. C. § 2902(b)(2), minimum liability limits (Delaware Code). https://delcode.delaware.gov/title21/c029/sc01/index.html

8. 18 Del. C. § 3902, uninsured and underinsured motorist coverage (Delaware Code). https://delcode.delaware.gov/title18/c039/index.html

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

10. 21 Del. C. § 4176C, electronic communication devices while driving (Delaware Code). https://delcode.delaware.gov/title21/c041/sc09/index.html

11. 21 Del. C. § 4185, motorcycle helmet and eye protection (Delaware Code). https://delcode.delaware.gov/title21/c041/sc11/index.html

12. Wright v. Moffitt, 437 A.2d 554 (Del. 1981), CourtListener. https://www.courtlistener.com/opinion/2058818/wright-v-moffitt/

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