Uninsured motorist coverage rules in Delaware

If the driver who hit you carried no insurance, or nowhere near enough of it, uninsured and underinsured motorist coverage (UM/UIM) is the part of your own auto policy that steps in. Delaware's version of these rules leans in favor of the injured person, and a few of them catch people off guard. Here is what actually governs a UM/UIM claim in Delaware, with the statute and the cases behind each point.

UM/UIM is already on your policy unless you rejected it in writing

Delaware doesn't make you buy UM/UIM the way it makes you buy liability insurance. The coverage is built into every auto policy automatically, at the same limits as your bodily-injury liability coverage, and it stays there unless the named insured rejects it in writing on a form the insurer provides that describes exactly what is being given up.¹ If you never signed that rejection form, you have UM/UIM, even if you don't remember asking for it.

Delaware's minimum liability limits are 25/50/10: $25,000 per person and $50,000 per accident for bodily injury, and $10,000 for property damage.²³ Because UM/UIM tracks your liability limits, a driver at the state minimum carries $25,000 per person in UM/UIM protection unless they bought more. Insurers also have to offer you the option to raise UM/UIM up to $100,000 per person and $300,000 per accident (or a $300,000 single limit), capped at your own liability limits.¹ The property-damage side of UM coverage comes with an automatic $250 deductible.¹³

When the other driver counts as "underinsured" in Delaware

This is where Delaware parts ways with a lot of states. Under 18 Del. C. § 3902(b)(2), a vehicle is "underinsured" when the at-fault driver's liability limits, adding up every applicable policy, are "less than the damages sustained by the insured."¹ The comparison is to your actual damages, not to the size of your own UIM limit. So if the person who hit you carried $25,000 in liability coverage and your losses come to $80,000, that driver is underinsured and your UIM coverage is in play, whether or not your UIM limit matches theirs.

Before your insurer has to pay, you generally have to exhaust the at-fault driver's liability limits through a settlement or a judgment.¹ Your UIM coverage then picks up the uncompensated part of your injuries. Delaware law is blunt about how that math works: your carrier can't shrink its own limits by what the at-fault driver already paid. In Hurst v. Nationwide Mutual Insurance Co., the Delaware Supreme Court held that any reduction comes off your total damages, not off your coverage limits, so an innocent claimant who hasn't been made whole by the at-fault driver is "entitled to be paid for the uncompensated bodily injuries, up to the full policy limits of the underinsured coverage."⁴ A policy clause that tried to offset UIM dollar-for-dollar against the liability payment was thrown out as contrary to the statute.⁴

Stacking coverage from more than one policy

Delaware treats UM/UIM as protection that belongs to you, not to a particular car. In Hurst, the court described the coverage as "personal to the insured and not vehicle specific" and allowed an insured to stack the UM limits of more than one policy "in the absence of an express prohibition" in the policy.⁴ If your household has more than one policy, or you're also covered under someone else's, those limits can combine. Whether stacking works in your situation depends on the exact policy wording, so the policies have to be read line by line.

You can settle with the at-fault driver and still collect UIM

The at-fault driver's insurer often offers its full limits early. Taking that money used to put your UIM claim at risk. Delaware closed that trap. Under 18 Del. C. § 3902(a)(4), an insured who releases a single at-fault driver in exchange for the full liability limits "shall continue to be legally entitled to recover against that tortfeasor for the purposes of recovery against the insured's underinsurance carrier."¹ You can accept the full liability limits, sign the release, and still pursue your own UIM coverage for what's left over. Telling your UIM carrier before you sign anything is still the safe move, since your policy may set out notice steps of its own.

How UM/UIM works alongside PIP

Delaware requires personal injury protection (PIP) on every registered vehicle: at least $15,000 per person and $30,000 per accident for medical bills and lost wages, plus up to $5,000 for funeral expenses.⁵³ PIP is first-party, no-fault coverage that pays your early medical bills no matter who caused the crash. It sits separately from UM/UIM. PIP doesn't reduce what you can recover under UM/UIM, and it can't substitute for it, because PIP is capped and doesn't pay for pain and suffering. When the at-fault driver has no coverage or too little, PIP handles the immediate bills while UM/UIM deals with the larger injury claim.

Filing a claim: the police report and the deadlines

Two practical rules deserve attention. First, Delaware's official auto guide states that to bring a UM claim you must have filed a police report about the crash.³ That matters most in hit-and-run cases, where the at-fault driver is a "phantom" who never stops. If a driver flees, report it promptly. The crash report is also where the facts get documented; you can read how to get a Delaware report on our Delaware crash reports page.

Second, watch two separate clocks. Your claim against the at-fault driver is a personal-injury tort claim, and Delaware gives you two years from the crash date to file suit.⁶ Your claim against your own insurer for UM/UIM benefits is a different animal: it's a contract claim. In Allstate Insurance Co. v. Spinelli, the Delaware Supreme Court held that a suit for UM benefits "sounds in contract," so it runs under the three-year contract statute of limitations, and the clock doesn't even start until the insurer denies the claim.⁷⁸ That sounds roomy, but don't lean on it. You still have to protect the two-year tort claim against the driver, and your policy can impose its own conditions. Treat the two-year date as your real deadline and get advice well before it.

If your car lost resale value after the repair, that diminished-value loss is its own claim; see our Delaware diminished value guide. And if a UM/UIM insurer is dragging its feet, a Delaware injury attorney can read your policy against the numbers. You can find one through our legal directory.

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

Sources

Delaware Code, 18 Del. C. § 3902 (uninsured and underinsured vehicle coverage). https://delcode.delaware.gov/title18/c039/index.html
Delaware Code, 21 Del. C. § 2902 (minimum motor-vehicle liability limits). https://delcode.delaware.gov/title21/c029/sc01/index.html
Delaware Department of Insurance, "The Instant Insurance Guide: Auto" (minimum coverage of $25,000/$50,000 bodily injury and $10,000 property damage; automatic $250 UM property-damage deductible; police-report requirement for UM claims; PIP of $15,000/$30,000 plus $5,000 funeral benefits). https://insurance.delaware.gov/wp-content/uploads/sites/15/2022/09/Auto-Insurance-Guide.pdf
Hurst v. Nationwide Mutual Insurance Co., 652 A.2d 10 (Del. 1995). https://www.courtlistener.com/opinion/1934010/hurst-v-nationwide-mut-ins-co/
Delaware Code, 21 Del. C. § 2118 (personal injury protection). https://delcode.delaware.gov/title21/c021/sc01/index.html
Delaware Code, 10 Del. C. § 8119 (two-year limitation for personal-injury actions). https://delcode.delaware.gov/title10/c081/index.html
Delaware Code, 10 Del. C. § 8106 (three-year limitation for actions on a contract). https://delcode.delaware.gov/title10/c081/index.html
Allstate Insurance Co. v. Spinelli, 443 A.2d 1286 (Del. 1982). https://law.justia.com/cases/delaware/supreme-court/1982/443-a-2d-1286-4.html

Uninsured Motorist Coverage Rules in Delaware