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Do You Sue the Driver or the Insurance Company After a Car Accident?

Articles & Publications

April 27, 2020

Have you been in a car accident? Did you sustain injuries or property damage as a result of the accident? After you have been in a car crash and documented the scene, the next step is determining who is at fault. The laws in your state determine who must pay for the damages that were incurred as a result of the car accident.

If you are determined to be completely at fault for an accident, you will not have much luck in suing the other driver for the costs of your medical expenses or personal damage. An experienced attorney can assist you in determining who is at fault in an accident, what your percentage of fault may be and how your percentage of fault can affect how much compensation you may be able to receive in a claim.

After you have determined that the other driver is at fault, you may wonder who you sue after a car accident. Can you sue the driver or the insurance company? The answer depends on which state you live in, whether the other driver has insurance and what the other driver's auto coverage is.

Delaware No-Fault Laws Means Insurance Pays for the Initial Settlement

In 2018, there were nearly 29,000 traffic crashes in Delaware, which resulted in more than 8,000 people injured. Though laws can vary by state, Delaware's no-fault laws mean that drivers have personal injury protection, also known as PIP. Whether you are determined to be responsible for the car accident or not, your medical expenses and lost wages will be covered by your auto insurance company.

Filing a Personal Injury Claim in Delaware

Drivers in Delaware are required to have auto insurance with personal liability coverage of $15,000 for one person and $30,000 per accident, but you can also elect to insure for more. In a car accident with multiple people, the minimum coverage may not offer enough protection.

Typically, PIP coverage goes for two years or until you no longer require medical treatment, can go back to work or the full amount has been used up.

Who Pays for the Injuries of a Passenger?

Additionally, if you are a passenger, you will be covered by both the driver's PIP coverage and your own if you have an insurance policy. For example, if the driver's policy offers you coverage for up to $15,000 and you have coverage of $20,000, your medical expenses up to $20,000 would be covered — $15,000 from the driver and $5,000 from your own policy.

If you are a passenger and do not have auto insurance, you will be entitled to the driver's PIP coverage of a minimum of $15,000. Regardless of who is at fault for the accident, you will make your claim with the insurance company of the driver of the vehicle where you were a passenger. Delaware includes this law to make the process of getting your medical expenses covered following an accident as simple and straightforward as possible.

Negotiating With the Auto Insurance Companies

If your medical bills exceed the amount of coverage provided by the driver's insurance, you can make a claim for these extra costs. You will make this claim with the other driver's insurance company for funds to cover your medical treatment, recovery and personal damages.

For severe damages, you may be able to bring a lawsuit against the other driver. If you negotiate a claim with the other driver's insurance provider and your expenses still are not being sufficiently covered, then you might want to sue the other driver.

You Can Sue for Additional Medical Bills and Pain and Suffering

You can sue for pain and suffering and further medical costs, assuming that your visits to the doctor and other medical costs have exceeded the personal injury protection policy. The claim cannot cover funds that would have otherwise been covered by your PIP coverage.

Comparative Negligence Law in Delaware

Delaware has a comparative negligence law that allows the victims of a car accident to sue the negligent, at-fault drivers. If a driver is determined to be 100% responsible for an accident, then they will owe 100% of the compensation to the victims.

If you are determined to be responsible for part of the car accident, this affects how much compensation you can receive. If you are determined to be more than 50% responsible for the car accident, you can't receive coverage. If you are determined to be less than 50% responsible for the accident, you may be able to receive compensation from the driver who is primarily at fault for the accident.

For example, if you are determined to be 10% at fault for the accident, your compensation may be cut by 10%, and the other driver will be responsible for 90% of the compensation. Your settlement amount will be cut by 10%. If you receive a settlement for $40,000, for instance, but you are determined to be 10% at fault for the accident, your settlement will be reduced by $4,000.

Do You Sue the Driver or the Insurance Company If You Are a Passenger?

If you were a passenger in a car accident and were injured as a result, you can pursue a car accident lawsuit in Delaware. You can pursue a lawsuit against the at-fault driver. To determine who the at-fault driver is, you need a police report of the accident and an attorney who can assist you in interpreting the report.

While certain no-fault states limit or forbid lawsuits for injuries sustained from a car accident, Delaware permits passengers to sue. If your PIP policy or your driver's policy covers your lost wages or medical bills, you cannot sue the other driver. If your costs exceed these policies, you can sue the at-fault driver for the rest of the damages.

For your lawsuit to be successful, you will need to prove the following:

  • The extent of your injuries or losses: You will need to prove the damages you have sustained. For proof, you can provide documentary evidence, medical records, medical bills, W-2s and pay stubs.
  • The other driver's negligence: You will need to prove that the other driver was negligent or at-fault of the accident. Common examples of negligence or fault include speeding, distracted driving, running a red light and running a stop sign.
  • The driver's negligence caused your injuries or losses: You will need to prove that this party's negligence caused the damages you have sustained.

If you can prove the above, then you might win a claim against the negligent party. The comparative negligence law in Delaware is not likely to affect you if you are a passenger, as you probably did not have any part in the accident.

Car Accident Lawsuit Process

If you are in a car accident, suing an at-fault driver requires a few steps beforehand. Follow these steps to improve your chances of filing a successful claim against an at-fault driver:

  1. Remain at the scene: Stay at the car accident scene and do not move the vehicles until authorities arrive.
  2. Examine yourself for injuries: Even if the accident is minor, examine yourself to see if you have been injured. After examining yourself, check the passengers in your vehicle to determine if they have been harmed.
  3. Report the accident to the authorities: Contact law enforcement so they can write a report about the accident. Give your statement about what happened and ask for a copy of the accident report. Along with giving you additional evidence, Delaware law also requires that drivers report the accident to law enforcement.
  4. Exchange information with the other parties: Exchange insurance and contact information with the other driver, along with any witnesses and passengers.
  5. Take photos of the scene: Taking pictures of the accident is one of the best ways to provide proof for your insurance claim or during a trial. Snap photos of the vehicles, damages, injuries and road and weather conditions.
  6. Visit the doctor: Even if you are not taken to the hospital, seek medical attention as soon as possible. An injury can worsen the longer you wait before seeking medical attention. Waiting can also harm any insurance claims or lawsuits you file.
  7. Hire an attorney: Hiring an experienced attorney for legal assistance can improve your chances of winning a claim against an at-fault driver for damages.

To sue an at-fault driver successfully, you should follow the above steps. Documenting everything about a car accident is essential so you can provide proof of your injuries or losses in a trial or for a claim. 

What Factors Can Affect Your Settlement Amount?

Many factors can affect your settlement amount. The following factors may increase your settlement value:

  • Broken bones
  • Spine damage
  • Scarring or disfigurement
  • Nerve damage
  • A lengthy recovery period
  • Traumatic brain injury
  • Injuries that mandate reconstructive surgery
  • Permanent loss of function or use of a body part
  • Medical records that document your injuries
  • Frequent appointments are required
  • Credible witnesses
  • The admission of guilt from the other driver
  • How quickly you sought medical attention for your injuries
  • Photos or videos that prove your injuries and the negligence of the other driver

If you have additional medical bills and pain and suffering, you can sue the at-fault driver to cover these costs.

Insurance Laws Vary for Other States

Insurance coverage and policy options can change state by state. For example, in Pennsylvania, drivers can elect for limited tort or full tort. Negligence laws in your state will determine how damages are awarded. A state follows a negligence model that is comparative or contributory.

  • Contributory negligence: Drivers in states that follow a contributory negligence model may not receive a recovery amount if they are determined to be even 1% at fault.
  • Comparative negligence: On the other hand, other states may award damages to a party in proportion to their percentage of negligence. This is known as comparative negligence.

To fully understand the laws for Delaware, your best option is to contact an attorney, especially if you were hit by an out of state driver. An attorney will know the laws in both Delaware and in the state where the other driver is from.

What Does Personal Injury Protection (PIP) Cover in Delaware?

What compensation can you recover from personal injury protection? When should you seek additional compensation through a personal injury case? With minimum coverage, your insurance company will cover up to $15,000 for a single person in an accident or up to $30,000 for every person in an accident. PIP also provides as much as $5,000 for funeral costs

These numbers refer to the amount you would receive with minimum coverage. You can opt to purchase more than the minimum coverage if you want more protection. Additional coverage you may want on your policy includes:

  • Collision coverage: This coverage pays to repair your vehicle's physical damage that was caused by the accident.
  • Comprehensive coverage: This coverage pays to repair vehicle damage that is caused by other causes, such as weather, theft or flooding.
  • Under-insured motorist coverage: This coverage pays for injuries you sustain from an accident if the at-fault driver does not have enough coverage.
  • Uninsured motorist coverage: This coverage pays for the losses you may incur if you are in an accident with an uninsured driver.
  • Rental reimbursement coverage: This coverage pays for the expense of renting a vehicle after you are in an accident.
  • Towing and labor coverage: This coverage pays for the expense of towing your vehicle.

Additional coverage will raise the cost of your premium, but you will also be better protected if you are in an accident. 


Get Legal Assistance to Help Maximize Your Personal Injury Compensation 

If you have been injured in a car accident, you are entitled to a fair settlement and compensation for your injuries. Your compensation should cover your medical bills, vehicle repairs and the costs associated with returning your life to normal. 

At Morris James Personal Injury Group, we strive to counsel our clients so they can be well-informed and know exactly what is going on during every step of the process. We communicate with our clients compassionately and work toward the most successful outcome possible for the clients we assist.

With so many years of experience, we know which methods insurance companies may try to use to push you toward accepting an unfair settlement. We can bring our expertise to your case to help you obtain the compensation to which you are entitled. To maximize your personal injury compensation after a car accident, contact us at Morris James Personal Injury Group.

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