Insurance carriers in Delaware fatal accident cases often argue the deceased was partly responsible. Whether or not that argument has merit, the legal framework that applies to it can significantly affect the family’s recovery.
The Detailed Answer
Delaware’s Modified Comparative Negligence Rule
10 Del. C. § 8132 generally provides that a plaintiff’s negligence does not bar recovery as long as the plaintiff’s negligence was not greater than the defendant’s. In wrongful death cases, the statute treats the deceased’s fault the same as a living plaintiff’s fault.
How the Rule Works
- If the deceased was 0% at fault, recovery is not reduced.
- If the deceased was 30% at fault, recovery is reduced by 30%.
- If the deceased was 50% at fault, recovery is generally still allowed but reduced by 50%.
- If the deceased was 51% or more at fault, recovery is generally barred.
How Fault Is Determined
The factfinder (jury or judge) decides percentages of fault based on evidence including:
- Police reports and accident reconstruction
- Witness testimony
- Surveillance video and event data recorders
- Medical records (toxicology, physical findings)
- Qualified expert testimony where appropriate
Multiple Defendants
When more than one defendant is at fault, percentages are allocated among all parties (including the deceased). Joint and several liability rules in Delaware can affect collection from individual defendants.
Practical Defense Tactics
Insurance carriers often look for evidence that the deceased contributed to the accident — speeding, lack of seatbelt use, distraction, intoxication. Anticipating and rebutting these arguments is part of preparing a wrongful death case.
What This Means for Your Case
Even when the deceased was partly at fault, the case may still be worth substantial recovery. The key is rigorous investigation early, before evidence fades. Joseph M. Jachetti has experience handling Delaware wrongful death and contested-liability matters and brings a decade of prior insurance claims adjusting to evaluating fault arguments. See the broader wrongful death overview.
Related Questions
Q: Does seatbelt nonuse affect recovery?
Delaware has specific rules regarding the use of seatbelt evidence in civil cases that should be analyzed case by case.
Q: What if the deceased was intoxicated?
Intoxication is one factor the factfinder may consider, but it does not automatically bar recovery if the defendant’s conduct was the more significant cause.
Q: Can the family appeal a fault percentage?
Allocation of fault is generally a question for the factfinder, with limited grounds for appellate review.
When to Talk to a Delaware Wrongful Death Lawyer
Comparative fault is often the most contested issue in fatal accident cases. A Delaware wrongful death attorney can evaluate the evidence and develop the response.
Free Consultation
Free consultation. No fee unless we recover compensation for you.
📞 Call (302) 984-1000
This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.
Have a Question About Your Case?
Get a free, confidential consultation with a Delaware attorney.
📞 Call (302) 984-1000
This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.