Suing Over a Work Injury in Delaware
When Delaware law lets an injured worker sue the employer, suing a third party such as a driver or equipment maker, and what to do if the employer has no workers' comp.
Short answer: Suing the employer: in Delaware, every employer and employee must accept compensation for a work injury or death regardless of negligence and to the exclusion of all other rights and remedies (uninsured/underinsured motorist and personal injury protection benefits are not affected). 19 Del. C. §§ 2304, 2374(e)(3)
| Suing your employer | Suing the employer: in Delaware, every employer and employee must accept compensation for a work injury or death regardless of negligence and to the exclusion of all other rights and remedies (uninsured/underinsured motorist and personal injury protection benefits are not affected). An employer that keeps operating without required insurance after notice from the Department of Labor is liable to injured employees either for compensation or in a damages lawsuit, in which it cannot use the defenses of the employee's negligence, assumption of risk or a co-worker's negligence. Uninsured employer: https://delcode.delaware.gov/title19/c023/sc04/index.html . Source: 19 Del. C. §§ 2304, 2374(e)(3) |
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| Suing someone other than your employer | Suing someone else: accepting comp is not an election of remedies, so the injured worker may sue a negligent third party. If the worker does not sue within 260 days after the injury, the employer or its insurer may sue in the worker's name, and whoever sues must send certified-mail notice to the Industrial Accident Board and the other parties at least 30 days before filing. After expenses of recovery (including reasonable attorney fees, shared by the parties according to their interests), the recovery first reimburses the employer or insurer for comp paid or payable, and the balance goes to the worker as an advance on future comp. Source: 19 Del. C. § 2363 |
| If your employer has no workers' comp | Employer without coverage: a Delaware employer that fails to carry workers' comp faces civil penalties of three times the premium it should have paid for one year, plus $10 per employee per day (at least $250 per day) of continued noncompliance after Department of Labor notice, and the Court of Chancery may stop it from doing business after 30 days in default. During continued noncompliance, injured employees may claim compensation or sue the employer for damages without the employer being able to use contributory negligence, assumption of risk or fellow-employee defenses. Penalties go to the Workers' Compensation Fund to pay claims of employees affected by an employer's failure to insure. How an employee applies to the Fund was not stated in the text read. Source: 19 Del. C. § 2374 |
Where to get help in Delaware
More Delaware workers' compensation
- Filing a Workers' Comp Claim in Delaware
- How Much Workers' Comp Pays in Delaware
- Workers' Comp Settlements in Delaware
- Retaliation for Filing Workers' Comp in Delaware
- Appealing a Denied Workers' Comp Claim in Delaware
- All Delaware workers' compensation rules
FAQ
Can you sue your employer for a work injury in Delaware?
Suing the employer: in Delaware, every employer and employee must accept compensation for a work injury or death regardless of negligence and to the exclusion of all other rights and remedies (uninsured/underinsured motorist and personal injury protection benefits are not affected). An employer that keeps operating without required insurance after notice from the Department of Labor is liable to injured employees either for compensation or in a damages lawsuit, in which it cannot use the defenses of the employee's negligence, assumption of risk or a co-worker's negligence.
Can you sue a third party for a work injury in Delaware?
Suing someone else: accepting comp is not an election of remedies, so the injured worker may sue a negligent third party. If the worker does not sue within 260 days after the injury, the employer or its insurer may sue in the worker's name, and whoever sues must send certified-mail notice to the Industrial Accident Board and the other parties at least 30 days before filing. After expenses of recovery (including reasonable attorney fees, shared by the parties according to their interests), the recovery first reimburses the employer or insurer for comp paid or payable, and the balance goes to the worker as an advance on future comp.
What if my employer doesn't have workers' comp insurance in Delaware?
Employer without coverage: a Delaware employer that fails to carry workers' comp faces civil penalties of three times the premium it should have paid for one year, plus $10 per employee per day (at least $250 per day) of continued noncompliance after Department of Labor notice, and the Court of Chancery may stop it from doing business after 30 days in default. During continued noncompliance, injured employees may claim compensation or sue the employer for damages without the employer being able to use contributory negligence, assumption of risk or fellow-employee defenses. Penalties go to the Workers' Compensation Fund to pay claims of employees affected by an employer's failure to insure.
General legal information, not legal advice. Laws change and local rules can differ; check the linked official source or talk to a lawyer about your situation.