Delaware’s workers’ compensation system is the exclusive remedy against your employer. It is not the only remedy available when other companies on the job site share responsibility for your injury. Understanding the difference between a workers’ compensation claim and a third-party civil claim is the foundation of nearly every construction injury case.
The Detailed Answer
The Delaware Workers’ Compensation Act trades fault for certainty. You do not have to prove your employer was negligent to receive medical care and disability benefits, but in exchange, you generally cannot sue your employer for pain and suffering. That bar applies only to your direct employer — not to other companies whose negligence contributed to the same accident.
Common Third-Party Defendants
On a typical Delaware construction site, the following parties may be potential third-party defendants:
- The general contractor (if you worked for a subcontractor)
- Other subcontractors whose work created the hazard
- The property owner, in some circumstances
- The architect or engineer, where design or oversight failures contributed
- Equipment manufacturers and rental companies (product liability)
- Material suppliers
Damages Available
A third-party claim may allow recovery of:
- Past and future medical expenses
- Past and future lost wages and earning capacity
- Pain and suffering
- Loss of enjoyment of life
- Permanent impairment
- Loss of consortium for a spouse
Workers’ Compensation Lien
Delaware workers’ compensation carriers typically assert a subrogation lien against any third-party recovery. The lien is intended to reimburse the carrier for benefits paid out. An attorney can negotiate the lien as part of resolving the third-party claim.
Statute of Limitations
Third-party civil claims are governed by 10 Del. C. § 8119 — Delaware’s two-year personal injury statute of limitations. Workers’ compensation claims have separate filing deadlines under the Delaware Workers’ Compensation Act.
What This Means for Your Case
If you were hurt on a Delaware construction site, the workers’ compensation claim is the floor — not the ceiling. A careful investigation may reveal third-party defendants whose negligence opens the door to a full personal injury recovery. The third-party claim is governed by Delaware’s modified comparative negligence rule at 10 Del. C. § 8132.
Related Questions
Q: Can I file a third-party claim if I am already getting workers’ compensation?
Yes — the two claims operate in parallel. The workers’ compensation claim continues, and a separate civil claim against any responsible third party can proceed at the same time.
Q: How is fault divided in a third-party claim?
Modified comparative negligence applies. Each party — including potentially you — is assigned a percentage of fault. Your recovery is reduced by your share, and is barred only if your fault exceeds 50%.
Q: What if the third party blames my employer?
Defendants often try to shift blame to the employer, but the employer is generally protected by the workers’ compensation exclusivity rule. The defendant still has to pay for its share of fault.
When to Talk to a Delaware Construction Lawyer
Identifying third-party defendants requires a careful investigation of contracts, OSHA records, and on-site conduct. Joseph M. Jachetti has experience handling Delaware construction injury claims and previously worked ten years as an insurance claims adjuster before joining the Delaware Bar in 1998. Read more about Joseph, our construction accident practice, workers’ compensation, and related questions like suing a general contractor.
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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.
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📞 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.