Delaware Car Accident Laws

A look at the filing deadline for a Delaware car accident lawsuit, the state's comparative negligence rule in the context of a car accident case, and more.

By , J.D. University of San Francisco School of Law
Updated 9/03/2021

After a traffic accident in Delaware, if you've been injured and/or incurred significant vehicle damage, you might want to consider your options for holding the at-fault driver financially responsible for your losses. In this article, we'll discuss a few state laws that could have a big impact on your case, including

  • the two-year deadline for filing most car accident lawsuits in Delaware's civil court system, and
  • Delaware's "modified comparative negligence" rule, which allows for financial recovery only when the claimant's level of responsibility for causing the accident is less than that of the other party (or parties) involved.

The Delaware Car Accident Statute of Limitations

A "statute of limitations" is a state law that puts a strictly-enforced time limit on a potential plaintiff's right to bring a lawsuit. These deadlines vary based on the kind of harm you suffered and/or the kind of case you want to file.

(Note: the statute of limitations does not apply to a car insurance claim. Any insurance company, whether your own or the other driver's, is going to require you to make a claim—or at least give the insurer notice of an incident that could trigger a claim—"promptly" or "within a reasonable time" after the accident. That usually means a matter of days, or a few weeks at most.)

In Delaware, as in most states, the statute of limitations that applies to car accident lawsuits is the same as the larger one that applies to all personal injury cases where one person's negligence is said to have caused injury to another. Specifically, Delaware Code Title 10, Section 8119 gives you two years to ask the state courts for a civil remedy for any kind of personal injury where someone else caused the harm.

So, in the context of a car accident case, that means if anyone was hurt in the crash—whether a driver, passenger, motorcyclist, bicyclist, electric scooter rider, or pedestrian—they must get their lawsuit filed against any potential defendant within two years, and the "clock" starts running on the date of the accident.

A two-year deadline also applies if you had your vehicle or other personal property damaged as a result of the car accident, except that time limit is set by Delaware Code Title 10, Section 8107. That same statute also governs any wrongful death claim that might be filed by a family member or a representative of the estate of anyone who was killed as a result of the car accident. Keep in mind that for these wrongful death claims, the two-year "clock" starts running on the day of the accident victim's death, which could be later than the date of the accident itself.

Having read all this, you may be wondering what happens if the statute of limitations deadline has passed, and you try to file your car accident lawsuit anyway. In that situation, the defendant (that's the person you're trying to sue) will point out the passage of the deadline in a motion to dismiss, and any Delaware court will almost certainly grant the dismissal (unless some rare exception acts to extend the deadline). That's why it's crucial to understand the statute of limitations and how it applies to your situation.

Finally, from a strategic standpoint, it's always a good idea to leave yourself plenty of time to file a lawsuit, even if you think your case will be resolved through a car insurance settlement. Keeping all your options on the table will give you more leverage during settlement talks. So if the statute of limitations filing deadline is close, it may be time to talk with an experienced Delaware car accident attorney.

Comparative Negligence in Delaware Car Accident Cases

"Comparative fault" refers to a situation where more than one party is at least partially at fault for an accident. States follow different approaches in this scenario.

Delaware Code Title 10 section 8132 says that, in a personal injury lawsuit, you can recover against any other at-fault party, but your damages (your financial recovery) will be reduced by a percentage that corresponds to your share of liability. And you will not be able to recover anything at all from other parties if your share of fault for the accident exceeds 50 percent. Under section 8132, recovery of damages is only possible if your share of negligence is "not greater than" that of other at-fault parties. In legalese, this means Delaware is a "modified comparative negligence" state.

Of course, this rule controls judge or jury awards in civil lawsuits (if you get to that stage). But before you get to that point, a car insurance claims adjuster will negotiate a settlement with an eye on Delaware's comparative fault rules. Keep in mind that because there is not a precise method to apportion fault empirically, the ultimate decision as to fault will depend on your ability to negotiate with an insurance claim adjuster, or to convince a judge or jury.

To see how this rule plays out in real life, we'll take a look at an example. Let's say you're driving a few miles-per-hour over the speed limit when another driver suddenly makes a left turn in front of you. Without enough time to stop, you collide with the other car. The other driver is found to be 80 percent at fault, but since you were speeding, the jury (or adjuster) figures that you were 20 percent at fault for the accident. If you would otherwise be entitled to a $10,000 award or settlement, it would be reduced to $8,000 based on your 20-percent share of fault.

Delaware Auto Insurance Requirements

Car insurance is certain to play a part in any claim that's made after a car accident. Delaware, like most states, requires vehicle owners to maintain certain minimum amounts of liability coverage. So, understanding the Delaware auto insurance rules is essential to any potential car accident case.

Reporting a Car Accident in Delaware

In Delaware, the driver of any vehicle involved in the following types of accidents must immediately report the crash "to the police agency which has primary jurisdictional responsibility for the location in which the collision occurred," according to Delaware Code Title 21 section 4203:

  • when the collision results in injury or death to any person
  • when the collision occurs on a public highway and results in property damage to an apparent extent of $500 or more, or
  • when it appears that the collision involved a driver whose physical ability is impaired as a result of the use of alcohol and/or drugs.

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