STATUTE OF LIMITATIONS
- Personal Property2 Years10 Del. C. § 8107*
- Personal Injury/Death3 Years10 Del. C. § 8106**
- Breach of Contract/Written3 Years10 Del. C. § 8106
- Breach of Contract/Oral3 Years10 Del. C. § 8106
- Breach of Contract/U.C.C./Goods4 Years6 Del. C. § 2-725
- Breach of Contract/Wages/Work1 Year10 Del. C. § 8111
- Statute of Repose/ProductsNone
- Statute of Repose/Real Property6 Years10 Del. C. § 8127***
- Breach of Warranty/U.C.C.4 Years6 Del. C. § 2-725
- Breach of Implied Warranty4 Years6 Del. C. § 2-725
- Workers’ Compensation2 Years19 Del. C. § 2363
- Strict Product Liability2 Years10 Del. C. § 8119 § 8107****
Statute of Limitations Exceptions
*3 Years if not discoverable in 2 Years. 10 Del. C. § 8107.
**3 Years if not discoverable in 2 Years. 10 Del. C. § 8119.
***6 Years from substantial completion of improvement to real property. 10 Del. C. § 8127.
****4 Years from delivery for breach of implied warranty of merchant-ability and fitness for a particular purpose. Addison v. Emerson Elec. Co., 1997 WL 129327 (D. Del. 1997).
Contributory Negligence/Comparative Fault
Modified Comparative Fault. 51% Bar. Damaged party cannot recover if it is 51% or more at fault. If 50% or less at fault, it can recover, although its recovery is reduced by its degree of fault. If defendant’s conduct was plain negligence, and plaintiff is more than 50% at fault, plaintiff cannot recover. 1 Del. C. § 8132; Brittingham v. Layfield, 962 A.2d 916 (Del. 2008).
Med Pay/PIP Subrogation
Med Pay: Coverage not applicable.
PIP: Yes. Statutory right of subrogation for reimbursement under 21 Del. C. § 2118(g) exists only against third-party’s liability carrier – not tortfeasor individually. Subrogation rights only against third-party policy limits remaining after insured settles with third party. Carrier can’t join insured’s third-party lawsuit. Third-party carrier can settle with PIP carrier before the insured, but must reimburse insured if third-party claim and subrogation recovery exceed third-party policy limits. Harper v. State Farm Mut. Auto. Ins. Co., 703 A.2d 136 (Del. Super. 1997). Subrogation may proceed directly against a self-insured tortfeasor. State Farm v. Dann, 794 A.2d 42 (Super. Del. 2002).
“Add-On” PIP State. No significant limitation on third-party lawsuits, but insured can’t recover no-fault benefits from tortfeasor. Uninsured driver without no-fault insurance can sue tortfeasor in tort. Redding v. Ortega, 840 A.2d 1224 (Del. 2003).
A three year contract statute of limitations applied to subrogation. 10 Del. C. § 8106. Statute of limitations begins to run on date(s) of final PIP payments (not first PIP payment) made to or for its insured. Nationwide Gen. Ins. Co. v. Hertz Corp., 2006 WL 2673057 (Del. Super. 2006).
Deductible Reimbursement
Automobile: No applicable statute, Administrative Code provision or case law exists other than as to PIP subrogation. With regard to PIP subrogation, Del. Code Ann. Tit. 21, § 2118(f) provides: “An insured person may not plead and introduce into evidence in an action for damages against a tortfeasor the amount of the deductible; however, insurers shall recover any deductible for their insureds or their household members pursuant to subsection (g) of this section.”
The carrier’s obligation to pursue under § 2118(g) extends to any deductible, not just exhausted deductibles. The PIP recovery deductible is limited to liability coverage that remains after insured’s bodily injury claim against the tortfeasor. Stratton v. Am. Indep. Ins. Co., 2010 WL 3706617 (Del. 2010).
Property: None.
Made Whole Doctrine
The 3rd Circuit, in which Delaware sits, has been reluctant to apply the Made Whole Doctrine, especially where the Plan language specifically and unambiguously disclaims it. Bill Gray Enter., Inc. Emp. Health & Welfare Plan v. Gourley, 248 F.3d 206 (3rd Cir. 2001). As for state law, however, Delaware contains no cases applying, extending, or explaining the application of the Made Whole Doctrine within Delaware state courts.
Economic Loss Doctrine
Majority Rule (exception for residential construction). The ELD prevents recovery in tort where only the product itself has been damaged. Danforth v. Acorn Structures, Inc., 608 A.2d 1194 (Del. Super. 1999). In 1996, the Delaware General Assembly passed the Home Owner’s Protection Act, 6 Del. C. §§ 3651-52. This Act expressly does away with the ELD in certain residential construction cases. Otherwise, where solely economic losses were sought and no damage to persons or other property had occurred, the plaintiff is limited to remedies under the U.C.C. and may not proceed in tort. When two separate parts are integrated into one functioning whole, damage to either integrated piece by the other component does not constitute damage to “other property” for which tort recovery is allowed. Delmarva Power & Light v. Meter-Treater, Inc., 218 F.Supp.2d 564 (D. Del. 2002). An exception to the ELD exists where there is negligent misrepresentation. Guardian Constr. Co. v. Tetra Tech. Richardson, Inc., 583 A.2d 1378 (Del Super. 1990).
Landlord/Tenant Subrogation
The fire insurer is not entitled, as subrogee, to bring an action against a tenant to recover for amounts paid to the landlord for fire damage to rental premises caused by the tenant’s negligence in absence of an express agreement between the landlord and tenant to contrary. The landlord and tenant are co-insureds under the fire policy. Lexington Ins. Co. v. Raboin, 712 A.2d 1011, 1016 (Del. Super. Ct. 1998). The Lexington decision surveyed the law of multiple jurisdictions in holding that the “trend of modem jurisprudence holds that fire insurance secured by the landlord has been obtained for the mutual benefit of landlord and lessee.” In Deloach v. Houser, 2018 WL 5899080 (Del. Super. 2018), the insurer for an apartment complex joined a suit filed by two tenants against a third tenant who caused a fire. The court affirmed that the Sutton Rule is the rule followed in Delaware.
Spoliation
Tort of Spoliation: Delaware declines to recognize a separate cause of action for negligent or intentional spoliation. Lucas v. Christiana Skating Center, Ltd., 722 A.2d 1247, 1250 (Del. 1998).
Sanctions: Criminal Penalty: 11 Del. C. § 1269(2), Tampering with physical evidence, states that “a person is guilty of tampering with physical evidence when … believing that certain physical evidence is about to be produced or used in an official proceeding or a prospective official proceeding, and intending to prevent its production or use the person suppresses it by any act of concealment, alteration or destruction, or by employing force, intimidation or deception against any person.”
Adverse Inference: Where a litigant intentionally suppresses or destroys pertinent evidence, an inference arises that evidence would be unfavorable to his case. Lucas v. Christiana Skating Center, Ltd., 722 A.2d 1247, 1250 (Del. 1998).
Parental Responsibility
Minor’s Driving. Parents, guardians or employer who signed license application liable for damages caused by minor driver. 21 Del. C. § 6104. Owner of vehicle liable for damages caused by minor given permission to operate vehicle. 21 Del. C. § 6105.
There are no limits to the liability involving a minor’s driving.
Vandalism. Parents liable for intentional or reckless damage to real or personal property. 10 Del. C. § 3922.
The limits of liability are $5,000.
Child must be under 18-years-old.
Contribution Actions
Pure Joint and Several Liability. Plaintiff can recover entire amount of damages from any particular defendant. 10 Del. C. § 6301; Blackshear v. Clark, 391 A.2d 747 (Del. 1978).
A settling contribution plaintiff is not entitled to contribution from a tortfeasor whose liability was not extinguished by the settlement. No contribution in a separate action if it can be enforced by cross-claim in the original action. 10 Del. C. § 6302; Am. Ins. Co. v. Material Transit, Inc., 446 A.2d 1101, 1104 (Del. Super. 1982).
Separate contribution actions are rarely allowed. Usually, they must be filed in the underlying third-party action.
Suspension of Drivers' Licenses
Administrative Suspension: Delaware suspends an uninsured driver’s license for six (6) months and fines the uninsured driver $1,500 if pulled over by a police officer or is involved in an accident and is unable to provide proof of motor vehicle insurance. Delaware DMV can assess a $100 fine, with a $5 per day increase, while mandatory insurance is not carried on vehicle. 21 Del. C. § 2118(n)(4). Each insurer must report to the DMV, within thirty (30) days after an accident, the name of any persons involved in the accident without insurance. 21 Del. C. § 2118(n)(3).
Judgment: Whenever any person fails to satisfy any judgment within sixty (60) days of its issuance, the judgment debtor can request the court forward a certified copy of such judgment to the Secretary of Transportation. 21 Del. C. §2941. If a person has had his license suspended for nonpayment of judgment, the Department after the lapse of ten (10) years from the entry of the judgment may issue a new license. 21 Del. C. § 2945.
Contact Information: State of Delaware, Division of Motor Vehicles, Uninsured Department, P.O. Box 698, Dover, DE 19903, (302) 744-2503 x2323, http://www.dmv.de.gov/.
Anti-Indemnity Statutes
Prohibits Intermediate Indemnity. Applies to Construction Contracts or Agreements. Del. Code, Title 6 § 2704.
Does not apply to any insurance policy issued by a “duly authorized” insurer “insuring against losses or damages from any causes whatsoever”.
Diminution of Value
First Party: Delaware Superior Court briefly determined that the majority of jurisdictions requiring the insurer to pay for diminution in value is the better view. However, the Delaware Supreme Court overruled that decision by holding that: “We conclude that the language ‘repair and replace’ is not ambiguous and that this language does not contemplate payment for diminution of value.” Delledonne v. State Farm Mutual Ins. Co., 621 A.2d 350, 352 (Del. Super. Ct. 1992); O’Brien v. Progressive Northern Ins. Co., 785 A.2d 281 (Del. 2001).
Third Party: No court decisions regarding recovery allowed for diminution in value of a damaged vehicle in a third-party claim.
Recording Conversations
All-Party Consent: State privacy laws state that all parties must consent to the recording of oral or electronic conversations. U.S. v. Vespe holds that even under the privacy laws an individual has the right to record their own conversations. Section 1335 says it is a class G felony to intercept without the consent of all parties thereto a message by telephone or other means of communication, except as authorized by law. Section 2402 provides that it is “authorized by law” for a person communication where the person is a party to the communication or where one of the parties to the communication has given prior consent, unless the communication is intercepted for the purpose of a criminal act. Del. Code Ann. tit. 11, § 2402(c)(4); Del. Code Ann. tit. 11, § 1335(a)(4); U.S. v. Vespe, 389 F. Supp. 1359 (1975).
Criminal Restitution
If a criminal defendant is convicted of “stealing, taking, receiving, converting, defacing, or destroying property” a court can order that they pay restitution to the victim of any such offense. Although the statute does not expressly label an insurer as a “victim,” it does state that the disbursement of restitution funds will go first to the individual victims before an insurer will receive any amount. Del. Code Ann. Tit. 11 § 4106(d)(2).
Delaware case law further states that prior Delaware court decisions “have construed the term ‘victim’ as used in § 4106(a) as ‘one who suffers injury, loss, or death as a result of the voluntary act or undertaking of another,’ and have included insurers who pay compensation to policy-holding victims in that definition as well.” Nathan v. State, 962 A.2d 256 (Del. 2008).
Health and Disability Insurance
Statute of Limitations: 2 Years (3 yrs. if not discoverable in 2 yrs.). 10 Del. C. § 8119.
Subrogation of Medical and Disability Benefits are allowed. Waters v. U.S., 787 A.2d 71 (Del. 2001). Made-Whole does not apply. Common Fund applies. Goodrich v. E.F. Hutton Group, Inc. 681 A.2d 1039 (Del. Supr. 1996).
Funeral Procession Traffic Laws
The law prohibits any vehicle not part of a funeral procession from driving between or interfering with a funeral procession. All vehicles in a funeral procession must be as closely-spaced as safely possible and must have headlights and taillights lit. Vehicles in a funeral procession must exercise due caution and yield the right-of-way to emergency vehicles or when directed by a police officer. Del. Code Ann. tit. 21, §§ 7101-7103.
Workers’ Compensation
Statute of Limitations: 2 Years. 19 Del. C. § 2363.
Can Carrier Sue Third Party Directly: Yes, if the plaintiff has not filed suit by 260 days. Must give 30 days notice by all.
Intervene: Yes.
Recovery from UM/UIM Benefits: No.
Subrogation Against Medical Malpractice: Yes.
Subrogation Against Legal Malpractice: No.
Recovery Allocation/Equitable Limitations: (1) Fees, Expenses; (2) Carrier Reimbursed, Less Pro-Rata Fees; and (3) Balance to Plaintiff.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: Pro-Rata.
Future Credit: Yes.
Auto No-Fault: No.
Dog Bite Laws
Dog owner is liable for damages in all types of injuries caused to person or property by their dog. Del. Code Ann. § 1711.
Employee Leasing Laws
While there are no statutes or cases which directly determine the respective subrogation rights against an employee leasing company or its client, most likely, both are going to be afforded protection under the Exclusive Remedy Rule. Porter v. Pathfinder Services, Inc., 683 A.2d 40 (Del. 1996).
Condominium Waiver of Subrogation Laws
Associations must maintain property insurance, liability insurance, and fidelity insurance, but the insurer must waive its right to subrogation against a unit owner and any member of his/her household.
Del. Uniform Common Interest Ownership Act, 25 Del. C. § 81-313(d)(2).
Courts, however, have said that anti-subrogation agreements do not bar third parties from suing negligent condo owners as joint tortfeasors. See Fireman’s Ins. Co. of Washington, D.C. v. Fire-Free Chimney Sweeps, Inc., No. 2010 WL 1268158 (Del. Super. 2010).
Automobile Total Loss Thresholds
Total Loss Formula (See here for definition).
Insurer determines if vehicle is a total loss. It is then transferred as a “salvage vehicle.” 21 Del. C. § 2512.
Sudden Medical Emergencies While Driving
Sudden Emergency Doctrine. Where a driver of a vehicle suddenly becomes physically or mentally incapacitated without warning, he is not liable for injury resulting from the operation of a motor vehicle while so incapacitated. Lutzkovitz v. Murray, 339 A.2d 64 (Del. 1975).
Where a prima facie case of negligence has been established by the plaintiff, the burden of proof is on the defendant to show sudden illness or attack and that such illness or attack was not anticipatable and unforeseen. Lutzkovitz v. Murray, 339 A.2d 64 (Del. 1975).
State Sovereign Immunity And Tort Liability
Tort Claims Act: Delaware Tort Claims Act.
No claim shall arise against the State, public officer/ employee if the act/ omission:
(1) arose out of an official duty requiring discretion;
(2) was done in good faith and for the best interest of the State; and
(3) was done without gross negligence.
Del. Code tit. 10, § 4001-4005 (1978).
Notice Deadlines: None.
Claims/Actions Allowed: Bringing a tort claim against the State requires a party to prove that the action is not precluded by the State Tort Claims Act or the doctrine of sovereign immunity. Marvel v. Prison Indus., 884 A.2d 1065 (Del. Super. 2005).
Comments/Exceptions: Sovereign Immunity is waived where insurance coverage exists by statute.
Del. Code tit. 18, § 6511. Where a State officer/employee is negligent in performing routine functions, they may be held personally liable. This includes motor vehicle accidents. Simon v. Heald, 359 A.2d 666 (Del. Super. 1976).
Damage Caps: None.
Recovery of Sales Tax After Vehicle Total Loss
First-Party Claims: No state sales tax in Delaware. No applicable statute, case law, or regulation governing recovery of sales tax. 21 Del. C. § 2118 (A)(4) describes only the following benefits: “Compensation for damage to the insured motor vehicle, including loss of use of the motor vehicle, not to exceed the actual cash value of the vehicle at the time of the loss and $10 per day, with the maximum payment of $300, for loss of use of such vehicle.” 21 Del. C. § 2118 (A) (4). Look at policy language.
Third-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax.
Damage to Property Without Market Value
Service Value: No Case Law
Intrinsic Value: “Where no market value is available, the value to the owner will be given.” Woodland Manor v. Anderson, 1997 WL 33471238 (Del. C.P. 1997).
Sentimental Value: A property’s sentimental value is unique to the owner. Carello v. State of Delaware, 2004 WL 2520905 (Del. Super. Ct., 2004).
One rule for measure of damages to clothing and household articles is replacement value adjusted to reflect actual value based on actual condition, considering articles in use for same length of time and in same condition, but court in its discretion may permit parties to resort to other known methods of ascertaining actual value. Phillips v. Delaware Power & Light Co., 201 A.2d 160 (Del. Super. 1964).
Municipal/County/Local Government Immunity and Tort Liability
Legal Authority:
Delaware county and municipal tort Claims Act: 10 Del. Code § 4013.
Notice Deadlines: Any municipality may enact a notice requirement by ordinance provided it is no longer than one (1) year. 10 Del. Code § 4013. Must give notice of actions against City of Wilmington within one (1) year of date cause of action accrued. 10 Del. Code § 8124.
Claims/Actions Allowed: Counties, municipalities, and political subdivisions retain their governmental immunity with three statutory exceptions. Depends on whether acts are discretionary or ministerial. Discretionary acts are subject to immunity; ministerial acts can be subject to liability under one of the three exceptions. The distinction is always one of degree. Sussex County v. Morris, 610 A.2d 1354 (Del. 1992).
Comments/Exceptions: No immunity when performing governmental function:
(1) Ownership, maintenance, or use of motor vehicle;
(2) Liability for the construction, operation, or maintenance of any public building; and
(3) Liability for a discharge of toxic substances.
10 Del. Code § 4012.
Damage Caps: $300,000 per occurrence. If municipality purchases liability insurance in excess of $300,000, then that is the limit. 10 Del. Code § 4013.
Laws Regarding Using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: Use of a cell phone is prohibited for a driver with a learner’s permit or other restricted licenses. 21 Del. C. § 2710.
No one may operate a motor vehicle while using a cell phone in any manner unless it is hands-free. 21 Del. C. § 4176C(a)
Other Prohibitions: No Applicable Laws.
Workers’ Compensation Claims by Undocumented Employees
Y/N/U: U*
Statute: The term “employee” includes every person in service under any contract of hire or other employment avenue. It is silent on “aliens” as employees. 19 Del. Code § 2301(10). 19 Del. Code § 2333(a) says non-resident alien dependents are entitled to ½ the compensation for residents.
Case Law: Campos v. Daisy Constr. Co., 107 A.3d 570 (Del. 2014).
Comments/Explanation/Other: *Under 19 Del. Code § 2325, illegal aliens are allowed to collect partial disability or diminished earning capacity. Campos held this application ensures fairness to undocumented workers under the law.
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: D.R.E. 702
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: The contributory negligence of a permissive user is not imputed to the owner in an owner’s action against a third-party tortfeasor for causing damage to the owner’s vehicle in a collision. Westergren v. King, 99 A.2d 356, 358 (Del. Super. 1953).
Negligence of a minor driver is not imputed to owner under § 6104 (making owner vicariously liable for negligence of minor diving with owner’s consent) because the language of the statute does not alter the common law rule preventing same.
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute.
No Family Purpose Doctrine. Markland v. B.O.R.R Co., 351 A.2d 89 (Del. Supr. 1976).
Sponsor Liability for Minor’s Driving: 21 Del. C. § 6104: Under Delaware law, a parent or guardian who signs a minor’s application for a driver’s license is liable, along with the minor, for damages caused by the minor’s negligent operation of a vehicle on a highway.
21 Del. C. § 6105: Owner of vehicle liable for damages caused by minor given permission to operate vehicle.
Product Liability Law
Statute of Limitations/Repose: 2 Years for personal injury and wrongful death. 10 Del. C. § 8119. Statute of Repose is 6 years. 10 Del. C. § 8127.
Liability Standards: Negligence, Warranty.
Fault Allocations: Modified Comparative. 10 Del. C. § 8132.
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: Yes.
Heeding Presumption?: No. Never adopted strict liability or Restatement (Second) of Torts § 402A (1965).
Innocent Seller Statute: Yes. 18 Del. C. § 7001.
Joint and Several Liability: Yes. 10 Del. C. § 6301, et seq.
Available Defenses: Assumption of Risk; Misuse; Alteration; Learned Intermediary; Inherently Unsafe Products; Presumption; Sophisticated User.
Restatement 2nd or 3rd?: Neither.
Owner Liability For Stolen Vehicle
Key In The Ignition Statutes: 21 Del. C. § 4182.
Common Law Rule: Whether liability can be imputed to a vehicle owner for injuries caused by a thief is based on questions of foreseeability. The court considers several factors that may lead a fact finder to impose a legal duty, including whether the vehicle is one that may attract those who lacked the skill and knowledge to operate it safely, whether the vehicle is one that would inflict more injury and damage than an ordinary vehicle, and whether prior occurrences should have indicated that additional security measures were required to prevent theft. Vadala v. Henkels & McCoy, Inc., 397 A.2d 1381 (Del. Super. Ct. 1979); Jewell v. Absher, 2002 WL 970464, at *3 (Del. Super. Ct. 2002).
Anti-Subrogation Rule
An insurer has no right of subrogation against an insured, co-insured, or a wrongdoer who is an insured under the same policy. Lexington Ins. Co. v. Raboin, 712 A.2d 1011 (Del. 1998). If a joint tortfeasor is protected from subrogation because of the ASR, and other joint tortfeasors who are not protected by the ASR are sued by the insurer, the unprotected joint tortfeasors can sue the protected joint tortfeasor for contribution. Great American Assur. Co. v. Fisher Controls Intern., Inc., 2003 WL 21901094 (2003) (unpublished); Firemen’s Ins. Co. of Washington, D.C. v. Fire-Free Chimney Sweeps, Inc., 2010 WL 1268158 (2010) (unpublished). In Fisher Controls Intern., Inc., Great American Assurance Company (“Great American”) paid damages for a fire that broke out at a refinery during a renovation project. Great American sued several subcontractors alleging that they negligently started the fire. They drop the suit against one of the subcontractors, Conectiv, after determining that Conectiv was an insured under the Great American policy and, therefore, protected by the ASR. Several of the other subcontractors then sue Conectiv for indemnification or contribution. The court rules that although the ASR protects Conectiv from a direct action by Great American, precedent indicates that Conectiv can still be sued for contribution or indemnification by its joint tortfeasors.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: 6 Del. C. § 4905A
Summary: The invoice must state if non-OEM parts were used in the repair.