State guide · Northeast
Delaware subrogation law guide
The insured recovers if its negligence is not greater than the negligence of the defendant or the combined negligence of all defendants, so it recovers at an even 50% split. Damages are reduced in proportion to its fault.
Delaware at a glanceDE
- Property damage
- 2 years
- Bodily injury
- 2 years
- Fault rule
- Modified, 51% bar
- Gov. notice
- None
Overview
Delaware pairs a modified comparative fault rule with full joint and several liability, a combination that favors a subrogating carrier once liability is established. Under 10 Del. C. 8132 the insured recovers at an even 50% split, and any liable defendant can be made to pay the whole judgment. The limitation periods are short and split by property type: two years for injury to personal property such as vehicles and contents, three years for trespass and indirect injury claims that cover most real property damage, two years for bodily injury and three years for contract claims, including written indemnity agreements. Delaware requires PIP coverage of at least $15,000 per person and $30,000 per accident, and 21 Del. C. 2118(g) sets the rules for PIP subrogation: the paying carrier reaches only the tortfeasor's liability coverage left after the injured person's claim is resolved, cannot join the injured person's suit, and must arbitrate disputes with other insurers. Property and collision subrogation is unaffected by PIP. Local governments keep immunity outside listed exceptions with a $300,000 cap, and Wilmington requires a one-year written notice to the Mayor.
Quick reference with citations
- Property damage SOL
- 2 years
- 10 Del. C. 8107 (injury to personal property); trespass and indirect injury claims, including most damage to real property, run 3 years under 10 Del. C. 8106
- Bodily injury SOL
- 2 years
- 10 Del. C. 8119
- Product liability
- 2 years for personal injury (10 Del. C. 8119) and for damage to personal property (10 Del. C. 8107); no product statute of repose; 4 years for UCC warranty claims (6 Del. C. 2-725); 6-year construction repose from substantial completion (10 Del. C. 8127)
- Written contract
- 3 years
- Contract and indemnity recoveries
- Comparative fault rule
- Modified, 51% bar
- 10 Del. C. 8132
- Government notice of claim
- No general statutory pre-suit notice
- Delaware has no general pre-suit notice statute for local governments. Claims against the City of Wilmington for physical injury or injury to property require written notice to the Mayor within 1 year stating the time, place, cause and character of the injury (10 Del. C. 8124). The County and Municipal Tort Claims Act (10 Del. C. 4010 to 4013) keeps immunity except for listed categories, chiefly negligent operation of motor vehicles, public building construction and maintenance, and pollutant discharges, and caps recovery at $300,000 per occurrence unless the entity carries more insurance. State immunity is waived only to the extent of the State's insurance coverage (18 Del. C. 6511).
Fault rule in practice
How Delaware's rule changes a $50,000 recovery.
The insured recovers if its negligence is not greater than the negligence of the defendant or the combined negligence of all defendants, so it recovers at an even 50% split. Damages are reduced in proportion to its fault.
Authority: 10 Del. C. 8132
| Insured's share of fault | Recoverable in DE | Under pure comparative |
|---|---|---|
| 0% | $50,000 | $50,000 |
| 20% | $40,000 | $40,000 |
| 50% | $25,000 | $25,000 |
| 60% | Barred | $20,000 |
Doctrines that move the number
Delaware doctrine checklist.
Made-whole doctrine
Delaware state courts have not squarely adopted or rejected the made-whole doctrine for insurer subrogation, and federal courts in the Third Circuit enforce plan language that clearly disclaims it. For PIP, the statute sets the priority: the paying insurer's subrogation reaches only the tortfeasor's liability coverage left after the injured person's own claim is resolved (21 Del. C. 2118(g)).
Economic loss doctrine
Danforth v. Acorn Structures, Inc., 608 A.2d 1194 (Del. 1992) bars tort recovery for purely economic loss when a product damages only itself, leaving the buyer to contract and warranty remedies. The Homeowners' Protection Act (6 Del. C. 3651 to 3652) removes the doctrine for certain residential construction claims, and negligent misrepresentation remains an exception.
Joint and several liability
Delaware retains joint and several liability, so a carrier can collect its full judgment from any liable defendant. Contribution among joint tortfeasors is governed by the Uniform Contribution Among Tortfeasors Act (10 Del. C. 6301 et seq.) and is usually resolved by cross-claim in the same action.
Anti-subrogation and waiver
An insurer has no right of subrogation against its own insured, a co-insured, or a wrongdoer insured under the same policy (Lexington Insurance Co. v. Raboin, 712 A.2d 1011 (Del. Super. 1998), aff'd, 723 A.2d 397 (Del. 1998)). Delaware trial courts have allowed other joint tortfeasors to seek contribution from a co-insured that the carrier itself cannot sue.
Practice notes
Working Delaware subrogation files.
- 1
Split the Delaware deadline by property type. Collision damage to a vehicle and contents losses are injury to personal property with two years under 10 Del. C. 8107, while water or fire damage to a building generally falls under the three-year period in 8106. When one event damages both, such as a delivery truck striking a storefront and the inventory inside, calendar the entire file at two years.
- 2
PIP subrogation in Delaware is a residual claim. If a carrier pays $12,000 in PIP benefits and the at-fault driver has $25,000 in bodily injury limits, the carrier can reach only what remains after the injured person's claim is settled. A $25,000 settlement leaves nothing; an $18,000 settlement leaves $7,000. Track the injured person's claim closely, because the liability carrier's settlement with the injured party cannot be challenged.
- 3
Joint and several liability makes the 51% bar more valuable. Suppose a carrier pays $64,000 after a warehouse fire, and fault is split 50% insured, 35% electrical contractor and 15% an uninsured subcontractor. The carrier recovers $32,000 and can collect all of it from the contractor, which then pursues contribution from the subcontractor under the Uniform Contribution Among Tortfeasors Act.
- 4
For claims against local government, check the County and Municipal Tort Claims Act exceptions before investing in the file: a negligently driven county vehicle or a defectively maintained public building can support recovery up to $300,000 per occurrence, while discretionary decisions stay immune. Losses involving the City of Wilmington need written notice to the Mayor within one year under 10 Del. C. 8124.
- 5
Ishqkala's SOL Tracking Engine reads the damaged property type in Delaware files and applies two years for vehicles and contents or three years for real property, choosing the shorter date when both are present. For PIP payments it records the tortfeasor's liability limits and the status of the injured person's claim, and lowers the expected recovery as that claim consumes the available coverage.
Key cases
Danforth v. Acorn Structures, Inc.
608 A.2d 1194 (Del. 1992)
Adopted the economic loss doctrine, barring tort recovery for purely economic loss when a product damages only itself. Subrogation for a failed component that harmed nothing else belongs in warranty or contract.
Lexington Insurance Co. v. Raboin
712 A.2d 1011 (Del. Super. 1998), aff'd, 723 A.2d 397 (Del. 1998)
Applied the anti-subrogation rule to bar a carrier's claim against a party insured under the same policy. Confirm the target's status under the policy before filing.
Inter-company arbitration
Delaware requires inter-company arbitration of PIP subrogation disputes by statute (21 Del. C. 2118(g)), and Arbitration Forums administers those filings in its PIP forum. For physical damage, signatory carriers must arbitrate company-paid damages up to $100,000 in the Automobile and Property forums, and panels apply Delaware's 51% rule. Product defect claims are not compulsory in the Property program, so failed component losses usually proceed in court within the two- or three-year limitation period.
How Ishqkala applies this guide
DE rules, built into every score.
- Opportunities with a Delaware loss state are calendared against the 2 years property damage period or the 2 years bodily injury period, whichever controls the claim type.
- The insured's estimated fault share is applied under modified, 51% bar before recoverable dollars are scored.
- Public-entity claims are flagged for counsel review because notice and immunity rules vary by entity.
- Alerts fire at 180, 90, 45 and 15 days before the controlling deadline.
Other modified, 51% bar jurisdictions
FAQ
Delaware subrogation FAQ
2 years (10 Del. C. 8107 (injury to personal property); trespass and indirect injury claims, including most damage to real property, run 3 years under 10 Del. C. 8106). A subrogating carrier generally takes the insured's claim subject to the same limitation period, usually measured from the date of loss.
Modified, 51% bar (10 Del. C. 8132). The insured recovers if its negligence is not greater than the negligence of the defendant or the combined negligence of all defendants, so it recovers at an even 50% split. Damages are reduced in proportion to its fault.
Delaware has no general pre-suit notice statute for local governments. Claims against the City of Wilmington for physical injury or injury to property require written notice to the Mayor within 1 year stating the time, place, cause and character of the injury (10 Del. C. 8124). The County and Municipal Tort Claims Act (10 Del. C. 4010 to 4013) keeps immunity except for listed categories, chiefly negligent operation of motor vehicles, public building construction and maintenance, and pollutant discharges, and caps recovery at $300,000 per occurrence unless the entity carries more insurance. State immunity is waived only to the extent of the State's insurance coverage (18 Del. C. 6511).
Delaware state courts have not squarely adopted or rejected the made-whole doctrine for insurer subrogation, and federal courts in the Third Circuit enforce plan language that clearly disclaims it. For PIP, the statute sets the priority: the paying insurer's subrogation reaches only the tortfeasor's liability coverage left after the injured person's own claim is resolved (21 Del. C. 2118(g)).
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