STATE LAW SUMMARY Overview of the State of Delaware Update 2013

Transcription

1 STATE LAW SUMMARY Overview of the State of Delaware Update 2013 Preparer: William Crawford Franklin & Prokopik, P.C. Wilmington, Delaware Table of Contents Overview of the Washington Court System A. Trial Courts B. Appellate Courts Procedural A. Venue B. Statute of Limitations C. Time for Filing an Answer D. Dismissal Re-Filing of Suit Liability A. Negligence B. Negligence Defenses C. Gross Negligence, Recklessness, Willful and Wanton Conduct D. Negligent Hiring and Retention E. Negligent Entrustment F. Dram Shop G. Joint and Several Liability H. Wrongful Death and/or Survival Actions I. Vicarious Liability J. Exclusivity of Workers Compensation Damages A. Statutory Caps on Damages B. Compensatory Damages for Bodily Injury C. Collateral Source D. Pre-Judgment / Post Judgment Interest E. Damages for Emotional Distress F. Wrongful Death and/or Survival Action Damages G. Punitive Damages H. Diminution in Value of Damaged Vehicle I. Loss of Use of Motor Vehicle Evidentiary Issues

2 A. Preventability Determination B. Traffic Citation from Accident C. Failure to Wear a Seat Belt D. Failure of Motorcyclist to Wear a Helmet E. Evidence of Alcohol or Drug Intoxication F. Testimony of Investigating Police Officer G. Expert Testimony H. Collateral Source I. Recorded Statements J. Prior Convictions K. Driving History L. Fatigue M. Spoliation Settlement A. Offer of Judgment B. Liens C. Minor Settlement D. Negotiating Directly With Attorneys E. Confidentiality Agreements F. Releases G. Voidable Releases Transportation Law A. State DOT Regulatory Requirements B. State Speed Limits C. Overview of State CDL Requirements Insurance Issues A. State Minimum Limits of Financial Responsibility B. Uninsured Motorist Coverage C. No Fault Insurance D. Disclosure of Limits and Layers of Coverage E. Unfair Claims Practices F. Bad Faith Claims G. Coverage - Duty of Insured H. Fellow Employee Exclusions Overview of the State of Delaware Court System A. Trial Courts 1. Justice of the Peace Court Entry level court with jurisdiction over certain traffic violations and misdemeanors in criminal cases. The court also sits as a committing magistrate. Jurisdiction

3 over civil matters where the amount in controversy is less than $15,000. Civil matters in JP Court are limited to property or contract matters, including exclusive jurisdiction over landlord tenant disputes. There is no jurisdiction for personal injury matters. Appeals from JP Court are to the Court of Common Pleas. 2. The Court of Common Pleas A statewide court of limited jurisdiction. Jurisdiction in civil matters if the amount in controversy is less than $50,000. Filing a civil complaint in CCP constitutes a waiver of a jury trial. A Defendant may file an answer and include a demand for a jury, which automatically transfers the case to Superior Court. Criminal jurisdiction is limited to misdemeanors and violations. The court has concurrent jurisdiction with the JP Court in this area. The court also hears preliminary hearings in criminal matters including felonies. The court has appellate jurisdiction over the JP Court and revocations of driver's licenses from the DMV. Appeals from CCP are on the record to the Superior Court. 3. Superior Court The State's primary trial court and court of general jurisdiction. The Superior Court has jurisdiction over all common law matters, but it is not a court of equity. It hears criminal matters, including all felony cases and most drug cases. There is no monetary maximum jurisdiction. The court also has specific authority to issue certain writs. See, 10 Del. C The Court sits as an appellate court for appeals from certain state agencies, such as the Department of Labor, as well as the Court of Common Pleas. Appeals from the Superior Court are taken to the Delaware Supreme Court. The Superior Court holds both bench trials and jury trials. Jury trials are by juries of 6, unless a litigant demands a trial by jury of Family Court A court of limited, statutory jurisdiction, the Family Court hears domestic cases, including divorce proceedings, Protection from Abuse orders, and criminal cases involving juveniles. In addition the court may hear criminal matters, other than felonies, involving one family member against another, child abuse and neglect, as well as custody issues. Appeals from the Family Court go directly to the Supreme Court, except in criminal matters where the accused has a right to a jury trial, in which case there is a trial de novo in the Superior Court 5. Chancery Court A court of equity. The Chancery Court does not have jurisdiction over any case where an adequate remedy may be had at common law or by statute. 10 DeI.C Traditionally the court of corporate litigation, including shareholder disputes, contract matters not involving a claim for monetary damages (i.e.; a demand for specific performance), and Trust and Estate matters. Appeals from Chancery Court are to the Supreme Court. There is no trial by jury in Chancery Court.

4 Alternative Dispute Resolution Attending an ADR proceeding is compulsory in Delaware. ADR may be mediation, arbitration or neutral assessment. If the parties cannot agree on the form, the Court will order mediation. See e.g., Super. Ct. Civ. R. 16(4). The parties stipulate to the ADR practitioner, and if they cannot agree, the Court appoints one. Arbitration consists of both evidence submitted on the record and testimony by the parties and other lay witnesses. Experts may provide opinions in written form. Exhibits must be submitted to the arbitrator 10 days prior to the hearing. The parties may stipulate to a binding arbitration at which point the case is removed from the docket. Reputation of Jurisdictions in Delaware Generally, juries in Delaware are conservative compared to surrounding jurisdictions. Of the three counties, Sussex, the most rural, is the most conservative, followed by New Castle County. An exception to this assessment is with a corporate defendant. Sussex juries are not as favorable to corporate defendants. The United States District Court juries tend to be more conservative than state court juries. B. Appellate Courts Delaware Supreme Court The State's appellate court. The court takes direct appeals from the Superior Court, Chancery Court and Family Court. The court is also the administrative arm of the court system in Delaware, and presides over attorney disciplinary proceedings. The court may also issue certain extraordinary writs, such as a Writ of Mandamus. The court may hear certified questions from the lower courts, or issue advisory opinions when called upon by the General Assembly. A panel of the Court consists of 3 justices, while an en banc panel consists of all 5 justices. Intermediate appeals - The Court of Common Pleas takes appeals from the Justice of the Peace Court. The Superior Court takes appeals from the Court of Common Pleas and from certain state agencies, such as the Department of Labor. Procedural A. Venue An action may be brought in any of the three counties in Delaware. Generally the action is filed where the defendant resides or where the incident occurred. However, if the plaintiff chooses a different venue than where the defendant resides, plaintiff forfeits recovery of costs should he or she prevail. Justice of the Peace Court is the proper venue for civil matters (property and contract) where the amount in controversy is less than $15,000; as well as landlord tenant disputes. (See above)

5 Court of Common Pleas is the proper venue for civil matters if the amount in controversy is less than $50,000, appeals from Justice of the Peace Court, and misdemeanor criminal matters. (See above) Superior Court is the proper venue for all common law matters, all felony criminal matters, appeals from Court of Common Pleas and appeals from State agencies (by statute), and for certain writs. This is the proper venue for a jury trial and for all matters at law. (See above) Chancery Court is the proper venue for all equity matters, corporate litigation, and trusts and estates. (See above) Family Court is the proper venue for all domestic issues and juvenile criminal matters. (See above) B. Statute of Limitations There is a two year statute of limitations for personal injuries. 10 Del. C Once a claim for damages is made, the defendant insurance carrier must provide notice to the Plaintiff of this two year statute of limitation. Failure to do so tolls the statute. In medical malpractice cases the same two year statute applies for a known condition. If the condition was unknown or could not, in the exercise of reasonable diligence, have been discovered, the limitation period is extended until three years from the date of the injury. There is a two-year statute of limitations for wrongful death and injury to personal property. 10 Del. C Breach of contract actions and causes of action unaccompanied by physical injury such as fraud, negligence, misrepresentation, or defamation are subject to a three year statute of limitations. 10 Del. C The statute of limitations begins to run when a plaintiff is chargeable with knowledge that his physical condition was attributed to the defendant's negligence. Stag v. Bendicts, 472 A. 2d 40 (Del. Super. 1984), aff'd, 486 A. 2d 1150 (Del. 1984). If the plaintiff knew of his or her injuries, but was unable to make a causal inference from the defendant's negligence to that injury, the statute is not necessary precluded from running. Grecco v. University of Delaware, 619 A. 2d 900 (Del. 1993). C. Time for Filing An Answer Chancery Court Rules, Superior Court Civil Rules, Court of Common Pleas Civil Rules provide 20 days to file a responsive pleading once the defendant has been served. See, e.g., Super. Ct. Civ. R. 12(a). In lieu of filing an Answer, the defendant may file a Motion to Dismiss (on the pleadings). The defendant also pleads affirmative defenses in the Answer. Certain defenses are waived if not

6 made at the time the Answer is filed. including; lack of jurisdiction over the person, insufficiency of process, improper venue, or insufficiency of service of process. See, e.g., Super. Ct. Civ. R. 12(h). Lack of subject matter jurisdiction is non-waivable. In Justice of the Peace Court, the defendant answers as directed by the summons. J.P. Ct. Civ. R. 12 D. Dismissal Re-Filing of Suit Liability Voluntary Dismissal In Chancery Court, Superior Court, Court of Common Pleas, and Justice of the Peace Court a plaintiff can voluntarily dismiss a suit by notice of dismissal any time before an answer or motion for summary judgment (whichever comes first) is filed, by filing a stipulation of dismissal. It is without prejudice, unless otherwise stated. Exception notice of dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed an action based on or including the same claim in any US or state court. See, e.g., Super. Ct. Civ. R. 41(a). Involuntary dismissal In Chancery Court, Superior Court, Court of Common Pleas, and Justice of the Peace Court a defendant can move to dismiss any action or claim against defendant for plaintiff's failure to prosecute or comply with procedural rules. In a non-jury suit, after completion of presentation of plaintiff's evidence, defendant (without waiving right to present defendant's evidence) may move for dismissal on grounds that upon the facts and the law plaintiff has shown no right to relief. Unless the order specifies otherwise, this type of dismissal operates as an adjudication on the merits. See, e.g., Super. Ct. Civ. R. 41(b). The Court can sua sponte can order an action dismissed for failure to prosecute, rule violation, or other reason it deems appropriate. Plaintiff is given notice by the court and can respond within 15 days. The court will dismiss or maintain the action. The order should specify if the dismissal is with or without prejudice. Plaintiff can re-file an action dismissed without prejudice (subject to the exception noted above). A. Negligence Negligence is defined as the act or failure to act that the actor, as a reasonable person should recognize, involves an unreasonable risk of harm to others where the actor has a duty to refrain from taking the action or has a duty to act if the omission may result in harm. Restatement Second of Torts 284. Recovery in an action for negligence requires (1) proof of a duty, (2) a breach of that duty, (3) proximate causation, and (4) damages. Lenkewicz v. Wilmington City Ry. Co., 74 A. 11, (Del.Super. 1908). Generally children are held to a standard of care

7 that a child of similar age and maturity would be expected to understand. Beggs v. Wilson, 272 A.2d 713 (Del. 1970). Negligence per se - Violation of a statute enacted for the safety of others is considered negligence per se. In Delaware, evidence of a violation of a statute may, but does not always, constitute negligence per se. In a claim for negligence per se, a plaintiff must establish four elements: (1) that the statute in question was enacted for the safety of others; (2) that the statutory violation proximately caused the plaintiffs injury; (3) that plaintiff was a member of the class of persons the statute was intended to protect; and (4) that the statute established a standard of conduct designed to avoid the harm suffered by plaintiff. NVF Co. v. Garrett Snuff Mills, Inc., 2002 WL , at *2 (Del. Super.). B. Negligence Defenses: Statute of limitations see above. Comparative Negligence Delaware is a comparative negligence state. The plaintiff's negligence will not bar recovery if the plaintiff's negligence is not greater than the negligence of the Defendant(s). Damages will be diminished in proportion to the amount of negligence attributed to the plaintiff. Essentially, if the plaintiff is greater than 50% at fault there is no recovery. If there is 50% fault on the part of the plaintiff, the plaintiff can recover, but damages will be reduced by plaintiff s percentage of negligence. 10 Del. C Assumption of the Risk Assumption of the risk is divided into two categories. Primary assumption of the risk is where the plaintiff relieves the defendant of legal duty by expressly agreeing to take his or her chance of injury from a known risk arising from the defendant's conduct or property. For Secondary Assumption of the Risk, the question is whether the plaintiff's conduct in encountering a known risk is in itself unreasonable. Secondary Assumption of the Risk is ultimately a question of comparative negligence, and is up to the finder of fact to determine if the plaintiff's conduct was reasonable, and whether it rose to a level of negligence greater than that of the defendant. Koutoufaris v. Dick, 604 A. 2d 390 (Del. 1992). Immunity: Parental Immunity The doctrine of parental immunity still applies as to issues of control, authority and discretion over the child, and there can be no action and contribution that would be available against the parent whose negligence combines with the defendant to produce injury. However, the defendant could still prove that the

8 parental negligence was the supervening cause of the injury cutting off the defendant's liability. Sears Roebuck & Company v. Huang, 652 A. 2d 6568 (Del. 1995). Spousal Immunity - There is no longer Spousal Immunity in civil cases in Delaware. Governmental and Sovereign Immunity The State of Delaware retains Sovereign Immunity for acts or omissions alleged in connection with official duties, provided the actions were without gross negligence. 10 Del. C There are specific statutory exceptions where the State has waived Sovereign Immunity. For example, the Delaware Transit Authority, has by statute, waived Sovereign Immunity up to $300, per occurrence for accidents involving transit vehicles. Generally, counties and municipalities are shielded from liability. There are, however, three statutory exceptions to municipal and county immunity: 1) liability for negligent acts in connection with the ownership, maintenance, or use of any motor vehicle; 2) liability for the construction, operation, or maintenance of any public building; and, 3) liability for a discharge of toxic substances. 10 Del. C Determining liability of counties or municipalities turns on whether the municipality's or county's acts are discretionary or ministerial. Sussex County v. Morris, 610 A.2d 1354 (Del. 1992). Discretionary acts are subject to immunity; ministerial acts can be subject to liability under one of the exceptions. Id. The distinction between ministerial and discretionary acts is always one of degree. Id. at C. Gross Negligence, Recklessness, Willful and Wanton Conduct In Delaware, gross negligence is defined as a higher level of negligence representing an extreme departure from the ordinary standard of care. Parker v. Wireman, 2012 WL , at *3 (Del. Super.) See also, Smith v. Silver Lake Elementary School, 2012 WL (Del. Super.). It implies a carelessness involving a conscious indifference to consequences in circumstances where probability of harm to another is reasonably apparent. Id. It is the functional equivalent to criminal negligence. Id. Wanton negligence has been defined as heedless and reckless disregard for another's rights with consciousness that an act or omission may result in injury to another. Id. Pleading gross negligence requires particularity to alert the defendant of potential liability and it is insufficient to merely make general statements of facts or recitations of conclusory allegegations. Smith v. Silver Lake Elementary School, 2012 WL , at *2 (Del.Super.). D. Negligent Hiring and Retention An employer is liable for negligent hiring by employing someone it should have known posed a risk of harm to others; or in the case of supervision, failed to

9 properly provide procedures, orders or otherwise supervise the actions of an employee who commits a tortuous act. Knerr v. Gilpin, Van Trump & Montgomery, Inc., 1988 WL (Del.Super.); Restatement of Agency 2d 213. E. Negligent Entrustment A vehicle owner or employer is subject to liability when he or she provides a vehicle (or other dangerous instrument) to someone he or she knows or should have known that doing so would constitute an unreasonable risk of harm to others. Delaware courts have held that the standard to prove negligent entrustment in an automobile case is: 1) entrustment of the vehicle, 2) to a reckless or incompetent driver whom, 3) the entrustor has reason to know is reckless or incompetent, and 4) this results in damages. Fisher v. Novak, 1990 WL (Del. Super.). In Delaware, by statute, an owner of a motor vehicle who permits a minor to drive that vehicle can be imputed with the liability of the minor in case of an accident, and will be held jointly and severally liable with the minor for any damages caused by the minor. 21 Del. C F. Dram Shop Generally Delaware does not recognize a cause of action against servers or sellers of alcoholic beverages for damages caused by a third party. McCall v. Villa Pizza, Inc., 636 A.2d 912 (Del. 1994). G. Joint and Several Liability Contribution Among Joint TortFeasors 1. Delaware law provides statutory contribution for defendants with a common liability to the plaintiff. 10 Del. C The statute provides for apportionment among joint tortfeasors in accordance with their relative percentages of fault. 3. Defendants may be jointly or severally liable to the plaintiff. When it is determined that one defendant is the sole proximate cause of the injury, this acts as a supervening cause, shielding other defendants from liability. Sears Roebuck & Co. v. Huang, 652 A.2d 568 (Del. 1995). H. Wrongful Death and/or Survival Actions The Delaware wrongful death statute provides a recovery for mental anguish suffered by survivors of a decedent, which includes the surviving spouse, children, father and mother, or persons in standing in loco parentis at the time of the death. 10 Del. C Delaware also has a survival statute. It provides that all causes of action, except for defamation and malicious prosecution, survive the decedent and pass on to the estate to continue to prosecute the cause of action. 10 Del. C

10 I. Vicarious Liability Respondeat Superior is the doctrine by which an employer can be held liable for the actions of its employees. This doctrine only applies if the tortious actions of the employee were within the scope of the employment. Essentially, the employer is vicariously liable for the actions of the employee (or its agent). Fisher v. Townsend's, Inc., 695 A.2d. 53 (Del. 1997). Two general rules establish the framework for determining vicarious liability. First, if the principal is the master of an agent who is a servant, the fault of the agent, if acting within the scope of employment, will be imputed to the master through respondeat superior. Id. at 58 Second, an owner or contractee will not be held liable for the torts of an independent contractor which are committed in the performance of the contracted work. Id. In Delaware, if the principal assumes the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract, a master/servant relationship has been created. Id. at 59. But, if a worker is not subject to that degree of physical control, but subject only to the general control and direction by the contractee, that worker is an independent contractor. Id. at 59. Right to control is a central consideration. Id. See also, West v. Flonard 2010 WL (Del. Super.). The Delaware Supreme Court has recognized that no one rule can be set to determine if a relationship is that of a servant/master or that of an independent contractor, and each case depends on its own facts. The determination is made by the fact finder. Id. NOTE: In Smith v. Williams, on a motion for summary judgment the Superior Court adopted the minority position that allowed plaintiff to proceed with a direct negligence claim against the employer defendant in addition to plaintiff s respondeat superior claim. Smith v. Williams, 2007 WL , *7 (Del Super.) In Hitchens v. Cannon & Cannon, Inc., the Superior Court allowed the plaintiff to assert both vicarious liability and a negligent hiring claim WL (Del. Super.) Though it dismissed the negligent hiring claim, the court suggested both claims would be viable with sufficient evidence. Id. J. Exclusivity of Workers' Compensation The claimant/employee may not sure the employer, or a co-employee for a compensable work injury pursuant to 19 Del. C. Sec Damages A. Statutory Caps on Damages Delaware has no statutory caps on non-economic damages. B. Compensatory Damages for Bodily Injury The purpose of a damage award is just compensation for the loss or injury sustained. Compensatory damages impose satisfaction for an injury such that an

11 award is directly related to the harm caused. Compensatory damages include general damages, special damages and consequential damages. General compensatory damages are awarded when the injury caused by the wrongful conduct would not be adequately compensated by mere nominal damages. General compensatory damages are for those injurious consequences which might have been foreseen or foreseeable and are such as the law presumes to be the natural and probable consequence of the defendant's wrongful conduct. Special damages are those damages that are the natural but not the necessary result of the wrongful acts. Special damages include compensation for out-ofpocket losses, which may include medical expenses, property damage, lost wages, future lost earnings and medical expenses, loss of earning power, and substitute services. Special damages must be proven to a reasonable probability and cannot rest on mere speculation. C. Collateral Source Delaware recognizes the collateral source rule, which states that a tortfeasor cannot benefit by payment from a third party for injuries or medical expenses sustained by a plaintiff. Evidence of damages can still be presented to the jury. There is an exception to this regarding PIP benefits. Medical expenses and lost wages paid pursuant to 21 Del. C cannot be introduced as evidence in the liability case. The insured can collect both disability pay and PIP benefits as long as he or she paid consideration for those benefits. The Court treats this as the ability to contract for a double recovery. If the employer paid 100% of the premiums it can offset for any benefits received. State Farm v. Nalbone, 569 A.2d 71 (Del. 1989). Health insurance. The PIP carrier would owe the lien and any balance billed by the provider to the insured. D. Pre-Judgment/Post judgment Interest Delaware follows the general rule that the prevailing party is entitled to pre- and post-judgment interest on a monetary judgment, with several limitations. Generally pre judgment interest is only available where the damages were easily determined prior to litigation, or liquidated, such as a breach of contract action or property damage. In a tort action for compensatory damages where the plaintiff made an offer, extended for a minimum of thirty days, that is less than the judgment, then pre judgment interest is available and is calculated from the date of the injury. 6 Del. C. 2301(d). Interest is not self-executing and must be requested as an item of damages. Reserves Development LLC v. Severn Say. Bank, FSB, 961 A.2d 521, 525 (Del. 2008). Post-judgment interest attaches upon entry of judgment. The rate of interest is 5% plus the Federal Reserve discount rate at the time the interest is due. 6 Del. C. 2301(a).

12 E. Damages for Emotional Distress Delaware recognizes a cause of action for Negligent Infliction of Emotional Distress. The courts have held that for a plaintiff to recover he or she must be in a zone of immediate danger to the negligent act. There is an exception for parents if there is a willful, wanton act(s) that causes harm to their child. Mancino v. Webb, 274 A.2d 711 (Del. Super. 1971). Damages for negligent infliction of emotional distress are not available in a breach of contract actions absent physical injury or actual intent to inflict emotion distress. E.I. DuPont de Nemours & Co. v. Pressman, 679 A.2d 436 (Del. 1996). To present a cause of action for Intentional Infliction of Emotion Distress, a plaintiff must show that the defendant's conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community..." Mattern v. Hudson, 532 A.2d 85, 86 (Del.Super. 1987). Liability does not arise from insults, indignities, petty oppressions, as one must be free to express opinions. Liability only arises if the "distress is so severe that no reasonable man could be expected to endure it." Id. F. Wrongful Death and/or Survival Action Damages Delaware's survival statute provides that all causes of action, except for defamation and malicious prosecution, survive the decedent and pass on to the estate to continue to prosecute the cause of action. 10 Del. C The Delaware wrongful death statute provides a recovery for mental anguish suffered by survivors of a decedent, which includes the surviving spouse, children, father and mother or persons in standing in loco parentis at the time of the death. 10 Del. C If there are no persons who qualify as those listed, an action shall be for the benefit of any person related to the deceased by blood or marriage. Wrongful Death damages Damages are awarded to beneficiaries proportioned to the injury resulting from the wrongful death. The amount recovered shall be divided among the beneficiaries in shares directed by the verdict. In determining the award amount, the trier of fact may consider deprivation of the expectation of pecuniary benefits to the beneficiary(s) that would have resulted from the continued life of the deceased; loss of contributions for support; loss of parental, marital and household services, including the reasonable cost of providing for the care of minor children; reasonable funeral expenses not to exceed $7000; and mental anguish. G. Punitive Damages Punitive damages serve three purposes: (i) to punish the wrongdoer, (ii) to deter the wrongdoer from engaging in similar conduct in the future, and (iii) to deter others from similar conduct. The plaintiff must show behavior that rises to the level of willful, wanton and malicious conduct in order to recover punitive

13 damages. A plaintiff may prove this conduct by showing a pattern of behavior in addition to a single act. Jardel Co. v. Hughes, 523 A.2d 518, 529 (Del. 1987). See also, Crowhorn v. Nationwide, 836 A.2d 558 (Del. Super. 2003). In Smith v. Williams, plaintiff sought punitive damages against driver and employer Yellow Cab Transportation, where defendant employer admitted vicariously liability WL (Del. Super.) The court stated that where plaintiff argues defendant's negligence is based on an error of judgment, plaintiff's burden is substantial and he or she must show the precise harm which eventuated must have been reasonably apparent, but consciously ignored in the formation of the judgment. Id (citing Jardel Co., Inc. v. Hughes, 523 A.2d 518 (Del. 1987)). The court found that despite employee defendant having 39 prior "bumping property in tight quarters" accidents, employer defendant did not exhibit degree of recklessness required for awarding punitive damages. Id. at *3-5. In order to recover punitive damages in a bad faith claim against an insurance carrier, the insured must show that the conduct of the insurance company was a wanton and willful breach of the insurance contract. Tackett v. State Farm, 653 A.2d 254 (Del. 1996). H. Diminution in Value of Damaged Vehicle Diminution of Value is not available in Delaware. I. Loss of Use of Motor Vehicle Compensation for Loss of Use of motor vehicle is available in Delaware. Title 21 Section 2118(i)(4) provides: Compensation for damage to the insured motor vehicle, including loss of use of the motor vehicle, not to exceed the actual cash value of the vehicle at the time of the loss and $10 per day, with a maximum payment of $300, for loss of use of such vehicle. The owner of the motor vehicle may elect to exclude, in whole or in part, the coverage described in this paragraph by the use of certain deductibles and exclusions in accordance with filings made by the insurer with the Department of Insurance Evidentiary Issues A. Preventability Determination In Delaware, the "last clear chance" doctrine was abolished by enactment of the comparative negligence statute. Laws v. Webb, 658 A.2d 1000 (Del. 1995) (overruled on other grounds). B. Traffic Citation from Accident In general, a guilty plea to a traffic offense is admissible in a civil trial. It acts as an admission by the pleading party of the conduct underlying the charge, which, in a civil trial, may form a basis for establishing negligence per se. Laws v. Webb, 658 A.2d (Del. 1995) (overruled on other grounds) (citing Boyd v. Hammond, 187 A.2d 413, 416 (Del. 1963)). The mere fact that charges have been brought (or not been brought) against a party are not admissible in a civil

14 trial. Id. (Citing Bierczynski v. Rogers, 239 A.2d 218, 222 (Del. 1968)) Such evidence is inadmissible due to risk the jury may find the lack of criminal liability determinative of the question of civil liability, and due to the risk the jury will be influenced by the fact law enforcement found (or did not find) the party to be at fault. Id. C. Failure to Wear a Seat Belt Under the Delaware Occupant Protection System Safety Act, failure to wear or use an occupant protection system shall not be considered as evidence of either comparative or contributory negligence in any civil suit or insurance claim adjudication arising out of any motor vehicle accident, nor shall failure to wear or use an occupant protection system be admissible as evidence in the trial of any civil action or insurance claim adjudication. See 21 Del. C. Sec D. Failure of Motorcyclist to Wear a Helmet Delaware Code Title 21, Section 4185(b) provides, every person operating or riding on a motorcycle shall have in that person's possession a safety helmet approved by the Secretary of Safety and Homeland Security (hereinafter "Secretary") through the Office of Highway Safety and shall wear eye protection approved by the Secretary; provided, however, that every person up to 19 years of age operating or riding on a motorcycle shall wear a safety helmet and eye protection approved by the Secretary. The statute is silent as to, and case law has not addressed the admissibility of a motorcyclist's failure to wear a helmet as a liability defense. Given that failure to wear a seatbelt and failure to wear a bicycle helmet are statutorily precluded from being admitted as evidence in civil actions or insurance claim adjudication, it is unlikely failure to wear a motorcycle helmet would be a viable liability defense. E. Evidence of Alcohol or Drug Intoxication Evidence of Plaintiff's alcohol consumption prior to the accident is admissible if the probative value outweighs the prejudicial value. In Laws v. Webb, the Delaware Supreme Court upheld the Superior Court's admission of plaintiff's alcohol consumption prior to the auto accident because it was relevant as to the degree of the plaintiff's fault and the evidence could assist the jury in determining the plaintiff's perceptive abilities near the time of the accident. Hineman v. lmber, 2012 WL , at *3 (Del. Super.) (citing Laws v. Webb, 658 A.2d 1000, 1010 (Del. 1995)(evidence of pedestrian's alcohol use over two-day period prior to accident was admissible)(overruled on other grounds). Risk of prejudice from admitting plaintiff's alcohol consumption was outweighed by the defendant's fair need to have the jury understand as much as possible about the background of one of the potential proximate causes of the accident. Id. (Citing Laws v. Webb). See also Scott v. Ritterson, 2004 WL

15 (Del. Super.) (evidence of plaintiff s alcohol consumption prior to the accident relevant because jury must assess the credibility of the parties in making its liability determination and prejudicial effect outweighed by jury's need to have all information necessary in assessing negligence and proximate cause);rachko v. Nationwide Mut. Ins. Co., 1997 WL (Del. Super.). Evidence of drug use also admissible. In Hineman v. lmber, the Superior Court allowed plaintiffs admission that he smoked marijuana a couple of hours before the injury for medical negligence claim WL , at *3 (Del. Super.). The Court stated the evidence was admissible as to the marijuana use affecting plaintiff's perception of the injury and his pain threshold, which was relevant to the jury's assessing the credibility of the parties in its determination of the alleged medical negligence. Id. F. Testimony of Investigating Police Officer In Delaware, unless a police officer is qualified as an expert in accident reconstruction, the officer's testimony concerning the primary contributing circumstance of an automobile accident is inadmissible lay testimony. Lagola v. Thomas, 867 A.2d 891, 895 (Del. 2005). A police officer can be qualified as an accident reconstruction expert. An investigating police officer can give testimony as to "point of impact" of an accident even if the officer is not qualified as an accident reconstruction expert. See Tally v. Tri- State Waste Solutions, 2007 WL , at *2 (Del. Super.) (citing Szewczyk v. Doubet, 354 A.2d 426 (Del. 1976)). G. Expert Testimony In Delaware, the trial court's "gatekeeper" role under Daubert/Kumho is wellestablished and enshrined under Delaware Rule of Evidence 702. D.R.E. 702 mirrors the federal rule. The Delaware Supreme Court has crafted a five-part test to determine the admissibility of an expert's testimony. It provides that a witness's proffered opinion testimony is admissible if the Court finds the witness is qualified as an expert by knowledge, skill, experience, training or education; the evidence is relevant and reliable; the expert's opinion is based on information reasonably relied upon by experts in the particular field; the expert testimony will assist the trier of fact to understand the evidence or to determine a fact in issue; and the expert testimony will not create unfair prejudice or confuse or mislead the jury. See Eskin v. Cardin, 842 A.2d 1222,1227 (Del. 2004). H. Collateral Source In Delaware, the collateral source rule prohibits the admission of evidence of an injured party receiving compensation or payments for tort-related injuries from a source other than the tortfeasor." O'Dell v. Fiorucci, 2011 WL , at *2 (Del. Super.)(citing James v. Glazer, 570 A.2d 1150, 1155 (Del. 1990)). The

16 purpose of the rule if to prevent the jury from offsetting its award to the Plaintiff based on a perception that the plaintiff will get a "double" recovery for the injury in dispute. Id. (Citing Estate of Farrel v. Gordon, 770 A.2d 517, 520 (Del. 2001)). The rule prohibits the introduction of evidence that the Plaintiff received compensation for the injuries sustained due to the defendant's negligent conduct. Id. (Citing State Farm Mut. Auto. Ins. Co. v. Nalbone, 569 A.2d 71, 73 (Del. 1988)). I. Recorded Statements Delaware Rule of Evidence 106 provides that when a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. The Delaware Supreme Court has held that once a party introduces a portion of a recording or writing, the burden shifts to the other party to require the admission of all or part of the remainder of the recording or writing which ought in fairness to be considered contemporaneously with it. See Flamer v. State, 953 A.2d 130, 135 (Del. 2008). The party invoking the rule bears the further burden of two qualifications the portions sought to be admitted must be relevant to the issues and only those parts which qualify or explain the subject matter of the portion offered by the opponent need be admitted. Id. J. Prior Convictions Prior crimes cannot be admitted to support any inference of bad character. See, Getz v. State, 538 A.2d 726, 730 (Del. 1998); Ruiz v. State, 2003 WL , at *3 (Del. Supr.). Prior convictions are admissible if they have independent logical relevance and their probative value is not substantially outweighed by danger of unfair prejudice. See, Getz v. State, 538 A.2d 726, 731 (Del. 1998); Ruiz v. State, 2003 WL , at *3 (Del. Supr.). Getz v. State provided guidelines for trial courts determining admissibility: the evidence of other crimes must be material to an issue or ultimate fact in dispute; must be introduced for a purpose sanctioned by D.R.E. 404(b) or for any other purpose not inconsistent with the prohibition against evidence of bad character or criminal disposition; the other crimes are proven by evidence which is plain, clear and conclusive; the crimes are not too remote in time; the probative value outweighs the prejudicial effect; and an appropriate limiting jury instruction is given. D.R.E. 404 "does not act as an absolute bar to evidence of other crimes so long as such evidence has relevance beyond merely showing a character trait." Bauman v. State, 891 A. 2d 146, 149 (Del. 2005), citing Deshields v. State, 706 A.2d 502, 508 (Del. 1998). K. Driving History In Delaware, motor vehicle records are admissible as business records of the Department of Motor Vehicles. For a motor vehicle record to be selfauthenticating, it must be accompanied by a written declaration of its custodian or other qualified person to meet evidence rules requirements. Such records are

17 admissible at trial if authenticating requirements are met and a proper foundation is laid. See Murrey v. Shank, 2011 WL , at *3 (Del. Super.). L. Fatigue Delaware Code Title 21, Section 4702(a) adopts the following parts of the Code of Federal Regulations, Title 49, Chapter III, Subchapter B, except as modified by this chapter: Part 387, Part 390, Part 391, Part 392, Part 393, Part 395, Part 396 and Part 397 adopted pursuant to the Transportation Article of the United States Code (49 U.S.C. 101 et seq.). (b) Notwithstanding the adoption of the laws and regulations as indicated in subsection (a) of this section, no requirements under this chapter shall apply to any single vehicle or a vehicle in combination operated in intrastate commerce with a gross vehicle weight rating or gross vehicle weight of 26,000 pounds or less, except for: (1) A vehicle being used to transport hazardous materials of a type or quality that requires the vehicle to be marked or placarded in accordance with the Federal Motor Carrier Safety Regulations; or (2) A vehicle having a seating capacity of 16 or more persons. Delaware case law has not yet addressed HOS as an evidentiary matter. M. Spoliation The Delaware Supreme Court held that an adverse inference could be drawn against a party who destroyed, spoiled or lost evidence, but only if that party acted recklessly or intentionally. Sears, Roebuck & Co. v. Midcap, 893 A.2d 542 (Del. 2006) Settlement A. Offer of Judgment In Delaware for an Offer of Judgment, a defendant makes a settlement offer more than 10 days from the date of trial. If the offer is refused by the plaintiff, and the subsequent judgment is less than or equal to the offer, the plaintiff must pay the defendant's costs incurred subsequent to the offer. Additionally, the plaintiff is precluded from filing for his or her costs. See Super. Ct. Civ. R. 68. Offer of Judgment is available in Superior Court, Court of Common Pleas and Justice of the Peace Court. B. Liens Delaware has no statutory requirement regarding notification of liens. For Worker's Compensation - 3rd party lien The employer/carrier has a subrogated lien reimbursement entitlement out of any third party recovery which may be realized by the claimant as a result of a work accident in accordance with 19 Del. C days after an accident, if no

18 suit filed, the employer/carrier may commence an action but must give the party 30 days notice. The employer/carrier is liable for sharing in attorney fees out of a third party recovery. Medicare/Medicaid All parties are responsible to notify Medicaid/Medicare regarding settlements. The Medicare/Medicaid issue must be addressed at settlement. A settling party should utilize the release documents to address Medicare/Medicaid lien issues. In Delaware, settling parties have typically used a "Medicare Addendum" to a release to shift the burden of compliance with the 42 U.S.C. Sec. 1395y(b) and its accompanying rules and regulations onto claimant. C. Minor Settlement In Delaware, a tort settlement for a minor must be first filed and sealed in Chancery Court. Once accepted in Chancery Court, it is filed in Superior Court for approval. The claimant must schedule a hearing date, with 10 days notice. The hearing is before a Superior Court Commissioner and the minor must attend the hearing. If the settlement is part of an existing Superior Court civil case, the settlement is filed under that number. If the settlement is not part of an existing civil case, it is filed as Miscellaneous. If the minor is over 14, but under 18, years of age, the minor has to consent to the settlement and a consent form must be filed with the Superior Court. Once the settlement is approved, the approved settlement must be filed in Chancery Court. The settling party then has 30 days to deposit the monies in an approved Delaware bank (Chancery Court maintains a list of approved Delaware banks). If the settlement is a structured settlement, it is filed solely in Superior Court there is no requirement to initially file in Chancery Court. D. Negotiating Directly With Attorneys The Delaware Insurance Code grants licensed adjustors the authority to investigate and negotiate settlement of claims on behalf of licensed agents, brokers, self-insurers, or insurers in 1 or more of the following lines of insurance: automobile insurance, property insurance, casualty insurance, marine and transportation insurance, and fidelity and surety insurance. 18 Del. C. Sec E. Confidentiality Agreements In Delaware confidentiality agreements are permitted. They are enforced according to the principles of contract law. Delaware is a freedom of contract state. It gives parties wide accommodation to enter into and craft contracts. F. Releases Delaware permits a wide range of releases. In the toxic tort context there are full and final releases, as well as limited releases that cover present diseases and

19 preserve a claimant's possible future disease claims. Generally, parties have wide berth to craft releases. Notarization requirements or witness signature requirements are generally decided between the parties. Enforcement is according to the general principles of contract law. Joint Tortfeasors in Delaware must carefully draft release language to protect their respective positions in each settlement. Section 6304 of Delaware's Joint Tortfeasor Act provides that a release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tort-feasor unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid; and, a release by the injured person of 1 joint tortfeasor does not relieve the 1 joint tortfeasor from liability to make contribution to another joint tortfeasor unless the release is given before the right of the other tortfeasor to secure a money judgment for contribution has accrued, and provides for a reduction, to the extent of the pro rata share of the released tortfeasor, of the injured person's damages recoverable against all the other tortfeasors. G. Voidable Releases Delaware is a freedom of contract state. Generally, Delaware courts hold each party to a contract responsible to understand what he or she is contracting for and for abiding by the contract. A release will not be unilaterally voidable by virtue of a claimant being unrepresented. Generally, under Delaware law, executing a valid general release releasing a party from any claim that arises as a result of an accident, is an absolute bar to bringing suit against that party based on the accident. Alston v. Alexander, 2011 WL , at *3 (Del. Super.) (citing Webb v. Dickerson, 2002 WL , at *3 (Del. Super.); Cunningham v. Walter, 1998 WL , at *2 (Del. Super.)(other citations omitted)). lf, however, both parties operated under a mutual mistake as to the existence or extent of plaintiffs injuries at the time they entered the into the release, the release will not preclude a suit. Id. (Citing Reason v. Lewis, 260 A.2d 709, (Del. 1969)). A lawsuit may proceed against the released party if the plaintiff can show that the release was procured by fraud, duress or coercion. Id. (Citing Webb, 2002 WL at *6). A claimant must allege a specific circumstance, such as mutual mistake of fact, for a Delaware Court to consider rendering a release voidable. The Delaware Supreme Court has held that a contract may be voidable under Delaware law if the plaintiff can prove the defendant made a misrepresentation, the defendant knew or believed the representation was false, or made with reckless indifference to the truth, the defendant intended to induce the plaintiff to act or refrain from acting, the plaintiff acted or did not act in justifiable reliance on the

20 misrepresentation, and the plaintiff suffered reliance damages. McLarthy v. Hopkins, 2011 WL , at *1 (Del.) Under Delaware law, if a court determines a mutual mistake underlies a general release, the court must find the release voidable. Id. at *2. In Alston v. Alexander, where claimant was contacted by an adjustor after an automobile accident, the Superior Court did not find a release voidable by mutual mistake of fact WL (Del. Super.) The Court stated that plaintiff was fully aware of the nature of her injuries when she signed the release so the Court could not find the release voidable by mutual mistake of fact. Id. at *5. As to plaintiff's claim she did not read the release, the Court stated plaintiff was under a duty to inform herself of the contents before signing the release and could not avoid the release's effect by claiming failure to read it. Id. The plaintiff was estopped by her own negligence form denying knowledge of the contents of the release she signed. Id. (Citing Hicks v. Soroka, 188 A.2d 133, 139 (Del. Super. 1963)). When dealing with an unrepresented claimant, to protect against potential future action on a release, an insurer should make sure the language of the release is as plain and clear as possible; and, that any cover letter accompanying the release is also as plain and clear as possible. Transportation Law A. State DOT Regulatory Requirements Delaware follows the DOT FMCSR. For interstate travel, the DOT FMCSR applies. For in-state travel the FMCSR applies to any vehicle with a gvwr over 26,000 pounds; for any vehicle with a gvwr between 10,001-26,000 pounds, Delaware law applies. B. State Speed Limits Delaware Code Title 21, Section 4169 provides: Where no special hazard exists, the following speeds shall be lawful, but any speed in excess of such limits shall be absolute evidence that the speed is not reasonable or prudent and that it is unlawful: All types of vehicles: (1) 25 miles per hour in any business district; (2) 25 miles per hour in any residential district; (3) 20 miles per hour at all school zones where 20 mph regulatory signs are posted and state the time periods or conditions during which the speed limit is in effect; such conditions may include when children are present or while 1 or more warning lights flash; (4) 50 miles per hour on 2-lane roadways; (5) 55 miles per hour on 4-lane roadways and on divided roadways.