Pro-Plaintiff Delaware Car Accident Laws in
Out-of-State Resident Car Accident Cases
Between limited tort/verbal threshold, collateral source and increasing restrictions on the application of joint and several liability, personal injury litigation in the context of auto accidents is fraught with peril. Not entirely true in Delaware, especially in car accident cases.
1. Delaware does not employ a limited tort/verbal threshold limitation.
Tort limitations or tort thresholds severely limit an innocent injured car accident victim’s right to obtain financial compensation for pain and suffering damages. In general, these tort limitations impose a pre-requisite to obtaining pain and suffering damages. For example, there must be a permanent serious injury, or the injury must fall under other statutory exceptions, in order for an injured individual to obtain pain and suffering damages.
Unlike neighboring states, Pennsylvania and New Jersey which employ tort thresholds, Delaware employs no tort limitation in car accident cases which occur in this state. In addition, Delaware courts are likely to apply Delaware law with respect to application of tort thresholds when dealing with an out-of-state driver who is injured in an auto accident in this state. For instance, a NJ driver with verbal threshold who is injured in a car accident in Delaware will probably be able to make a claim for pain and suffering damages, notwithstanding the home state tort election. Delaware courts will engage in a choice of law or conflicts of law analysis and will probably find that so long as the accident occurred in Delaware and involved a Delaware tortfeasor, Delaware law applies.
2. Delaware retains full joint and several liability principles.
In the last few years, more states have begun to restrict applicability of joint and several liability. For instance, Pennsylvania’s legislature recently limited the application of joint and several liability in most tort claims. Now, in most multiple defendant tort cases in PA, liability is apportioned. Not so in Delaware. Under Delaware law, when the negligent acts of two or more defendants concur in producing a single, indivisible injury, the defendants are jointly and severally liable. The plaintiff may therefore seek recovery from either or both defendants. Plaintiff may choose either defendant to be held individually liable for the entire amount of the judgment/damages.
3. Delaware courts apply the traditional collateral source rule.
Under Delaware tort law, injured plaintiffs, whose medical bills are paid pursuant to out-of-state car insurance policies, are generally able to plead and prove all damages; this is Delaware’s collateral source rule in full effect. Delaware courts have consistently recognized that the collateral source rule is firmly embedded in Delaware jurisprudence. Double recovery is acceptable so long as the source of such payment is unconnected to the original tortfeasor.
In a typical Delaware car accident lawsuit, a Delaware plaintiff who has medical bills in excess of PIP can plead and prove the full value of those medical bills, even if they were paid by plaintiff’s private health insurance carrier.
Firm founder, Martin Knepper, has been handling auto accident cases in Delaware for over 30 years and welcomes referrals from out of state counsel. For more information, please call (302) 658-1717.
*Disclaimer: This website page does not provide any legal advice or create any attorney-client relationship. Every case is unique and you should not take any action or make decisions in your case without speaking to a qualified car and truck accident lawyer in Delaware. Any discussion of results is no guarantee of the same or similar results in current or future cases.
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