Key Takeaways:
- Delaware permits recovery when an injured person is no more than 50% at fault.
- Compensation decreases in proportion to the injured person’s assigned percentage of fault.
- A person who is 51% or more responsible cannot recover damages.
- Promptly preserving photographs, reports, videos, and witness information can counter blame-shifting.
Our experienced Wilmington car accident lawyers at McCann Dillon Jaffe & Lamb, LLC help injured people respond more effectively when an insurer shifts blame after a collision. Under Delaware “comparative negligence” law, partial responsibility reduces compensation and may eliminate it. Understanding fault percentages can protect a claim from an unsupported reduction.
What Is Comparative Negligence in Delaware?
“Comparative negligence” is the rule used when more than one person contributed to an accident. Under 10 Del. C. § 8132, an injured person may recover damages if their negligence was not greater than the negligence of the defendant or all defendants combined. The award is then reduced by the injured person’s percentage of responsibility.
Delaware uses “modified,” not pure, comparative negligence. A pure system permits some recovery even when a claimant is primarily responsible. Delaware imposes a cutoff above 50% fault.
How Does Being Partly at Fault Reduce Your Recovery?
The calculation is straightforward: total proven damages are multiplied by the percentage of fault assigned to the other side. If damages equal $100,000 and the injured person is 20% responsible, the recovery becomes $80,000. At 50% fault, it becomes $50,000.
Damages may include medical expenses, lost income, property damage, and pain and suffering. A disputed percentage can substantially change a Wilmington, DE, accident claim.
What Is Delaware’s 51% Bar Rule?
The “51% Bar” means an injured person recovers nothing when found more negligent than the defendant or defendants combined. Someone who is exactly 50% responsible may still recover half of the proven damages. Someone who is 51% responsible is barred.
In a multi-vehicle crash, the claimant’s percentage is compared with the combined negligence of the defendants from whom recovery is sought.
How Do Insurers Use Comparative Fault Against You?
Insurers may allege speeding, distraction, following too closely, or an unreasonable reaction. They may use an incomplete statement or selective police-report reading to increase the claimant’s percentage.
Helpful evidence includes scene photographs, video, event data, phone records, medical documentation, repair estimates, and witness statements. In a “shared-fault” Delaware injury claim, early preservation can prevent the insurer’s theory from becoming the only documented account.
Avoid guessing about speed, distance, or injuries in a recorded statement. Report facts accurately, obtain medical care, and keep copies of bills, wage records, correspondence, and claim documents.
How a Wilmington Lawyer Protects Your Claim
A lawyer can investigate, identify responsible parties, preserve evidence, and document damages. Counsel can test whether the insurer’s proposed percentage matches physical evidence and witness accounts.
When litigation is necessary, an eligible New Castle County case may proceed in Superior Court at the Leonard L. Williams Justice Center in Wilmington. Venue depends on the parties, accident location, and governing procedural rules.
Frequently Asked Questions (FAQs):
Can I recover damages if I was 50% at fault?
Yes. Delaware law permits recovery at 50% fault, but the award is reduced by half.
Who decides each party’s percentage of fault?
Insurers may propose percentages during negotiations. If the case proceeds to trial, the fact-finder determines fault based on the evidence.
Does a traffic citation establish negligence?
Not automatically. A citation may be relevant, but liability requires consideration of all admissible evidence and circumstances.
Should I give the other insurer a recorded statement?
Speak with counsel first. Adjusters may frame questions to obtain statements that support a comparative-fault defense.
Can several defendants share responsibility?
Yes. Multiple drivers, vehicle owners, employers, or other parties may share fault depending on the facts.
Challenge an Unfair Fault Allocation With Legal Guidance From Our Experienced Wilmington Car Accident Lawyers at McCann Dillon Jaffe & Lamb, LLC
Comparative-fault arguments can materially reduce an otherwise valid recovery. Our Wilmington car accident lawyers at McCann Dillon Jaffe & Lamb, LLC can evaluate the evidence, address insurer tactics, and pursue compensation supported by the facts. For a free consultation, call us today at 302-888-1221 or complete our online form. Located in Wilmington, Delaware, we proudly serve clients in the surrounding areas.