Delaware Personal Injury Demand Letter

PERSONAL INJURY DEMAND LETTER — STATE OF DELAWARE

FOR SETTLEMENT PURPOSES — DEL. R. EVID. 408

ATTORNEY / FIRM INFORMATION

CLAIM INFORMATION

RE: Personal Injury Claim of [________________________________] v. [________________________________]
Claim No.: [________________________________]
Date of Loss: [__/__/____]

Dear [________________________________]:

1. INTRODUCTION AND PURPOSE

This firm represents [________________________________] ("Claimant") in connection with personal injuries sustained on [__/__/____] as a direct and proximate result of the negligence of your insured, [________________________________] ("Insured" or "Tortfeasor"). This letter constitutes a formal demand for settlement of all claims arising from the above-referenced incident.

This demand is an offer to compromise a disputed claim. Delaware Rule of Evidence 408 limits specified uses of compromise offers and negotiation statements, subject to its exceptions. Nothing herein is intended as an admission or waiver of any rights or claims.

PREJUDGMENT INTEREST DEMAND: Pursuant to 6 Del. C. § 2301(d), this letter is the Claimant's written settlement demand. It remains open for at least 30 days after delivery to the defendant. In a qualifying Superior Court or Court of Common Pleas tort action, if the damages on which final judgment is entered exceed this demand, interest is added from the date of injury at the rate established in § 2301(a).

Under Delaware's modified comparative negligence system (10 Del. C. § 8132), a claimant's negligence does not bar recovery if it is not greater than the negligence of the defendant or the combined negligence of all defendants against whom recovery is sought; damages are reduced proportionally. Medical-expense damages require separate review of the payer and any write-offs.

Please direct all communications regarding this claim to this office. Do not contact our client directly.

2. DELAWARE STATUTORY FRAMEWORK

2.1 Negligence and Comparative Fault

• 10 Del. C. § 8132 — In a negligence action for death or injury to person or property, claimant negligence does not bar recovery when it is not greater than the negligence of the defendant or the combined negligence of all defendants against whom recovery is sought. Damages are reduced in proportion to claimant negligence. In a two-party case, claimant fault greater than 50% bars recovery.

2.2 Statute of Limitations

• 10 Del. C. § 8119 — A personal-injury damages action generally must be filed within 2 years from the date the injuries were allegedly sustained, subject to the section's stated exception and any applicable accrual or tolling rule.
• Date injury was sustained: [__/__/____] | Counsel-checked filing deadline: [__/__/____]

2.3 Collateral Source Rule

• Delaware's collateral source rule depends on the payer. Private insurance payments and gratuitous physician write-offs have been treated differently from Medicare and Medicaid payments. Under Smith v. Mahoney, No. 642, 2015 (Del. Nov. 3, 2016), past medical expenses paid by Medicare or Medicaid cannot be increased to billed charges through the collateral source rule. Identify each payer and the legally recoverable amount before including medical bills in the demand.

2.4 Prejudgment Interest

• 6 Del. C. § 2301(d) — In qualifying tort actions in Superior Court or the Court of Common Pleas for bodily injury, death, or property damage, interest is added to a final damages judgment when, before trial, the plaintiff extended a written settlement demand valid for at least 30 days and the damages on which judgment was entered exceed the demand.
• Rate: the rate under § 2301(a), five percentage points over the Federal Reserve discount rate, including any surcharge.
• Interest runs from the date of injury.

3. FACTUAL BACKGROUND

3.1 The Incident

On [__/__/____], at approximately [____] [a.m./p.m.], the Claimant was [________________________________] at or near [________________________________] (the "Incident Location") in [________________________________], Delaware.

At that time and place, your insured, [________________________________], negligently [________________________________].

As a direct and proximate result of your insured's negligence, the Claimant sustained serious personal injuries as described below.

3.2 Scene and Conditions

3.3 Law Enforcement Response

3.4 Witness Information

3.5 Narrative Summary

[________________________________]

[________________________________]

[________________________________]

4. LIABILITY ANALYSIS

4.1 Duty of Care

Your insured owed the Claimant a duty of reasonable care under Delaware law. Specifically, your insured had a duty to [________________________________].

4.2 Breach of Duty

Your insured breached this duty of care by:

☐ Operating a motor vehicle in a negligent manner
☐ Failing to maintain a proper lookout
☐ Failing to yield when turning left or entering a roadway (21 Del. C. §§ 4132-4133)
☐ Following too closely in violation of 21 Del. C. § 4123
☐ Driving faster than reasonable and prudent for conditions (21 Del. C. § 4168(a))
☐ Operating while under the influence (21 Del. C. § 4177)
☐ Holding an electronic communication device to text while the vehicle was in motion (21 Del. C. § 4176C(a), (b)(6)c.)
☐ Running a red light (21 Del. C. § 4108(a)(3)a.)
☐ Failing to stop at a stop sign (21 Del. C. § 4164(a))
☐ Careless or inattentive driving (21 Del. C. § 4176)
☐ Failing to maintain premises in a safe condition
☐ [________________________________]
☐ [________________________________]

4.3 Causation

The Claimant's injuries were the direct and proximate result of your insured's breach of duty. But for your insured's negligent conduct, the Claimant would not have sustained these injuries.

4.4 Comparative Fault Analysis (10 Del. C. § 8132)

Under 10 Del. C. § 8132, the Claimant is barred if the Claimant's negligence is greater than the negligence of the defendant or the combined negligence of all defendants against whom recovery is sought. In a two-party case, that means Claimant fault greater than 50%.

Our position is that your insured bears [____]% fault for this incident.

5. INJURIES AND MEDICAL TREATMENT

5.1 Summary of Injuries

Primary Diagnoses:
☐ Traumatic brain injury (TBI) / Concussion
☐ Cervical spine injury (herniation, bulge, fracture)
☐ Thoracic spine injury
☐ Lumbar spine injury (herniation, bulge, fracture)
☐ Shoulder injury (rotator cuff tear, labral tear, dislocation)
☐ Knee injury (ACL, MCL, meniscus tear)
☐ Hip injury / fracture
☐ Rib fractures
☐ Wrist / hand fractures
☐ Ankle / foot fractures
☐ Facial lacerations / scarring
☐ Internal organ damage
☐ Soft tissue injuries (sprains, strains, contusions)
☐ Post-traumatic stress disorder (PTSD)
☐ Depression / anxiety
☐ [________________________________]

ICD-10 Codes:

5.2 Chronological Treatment History

Emergency / Acute Care

Primary Care / Follow-Up

Specialist Care

Physical Therapy / Rehabilitation

Surgical Procedures

Diagnostic Imaging

Mental Health Treatment

Prescription Medications

5.3 Current Condition and Prognosis

[________________________________]

Treating physician's prognosis:
☐ Full recovery expected
☐ Permanent partial impairment — rated at [____]% whole person impairment
☐ Permanent total impairment
☐ Ongoing treatment required (estimated duration: [________________________________])
☐ Future surgery likely or recommended
☐ Maximum medical improvement (MMI) reached on [__/__/____]
☐ MMI not yet reached

6. DAMAGES CALCULATION

6.1 Summary of Economic Damages

A. Past Medical Expenses

MEDICAL-EXPENSE REVIEW: Identify who paid each bill and any write-off. Smith v. Mahoney, No. 642, 2015 (Del. Nov. 3, 2016), limits recovery of past expenses paid by Medicare or Medicaid to amounts actually paid; a billed amount is not automatically recoverable.

B. Future Medical Expenses

C. Past Lost Wages / Income

D. Future Lost Earning Capacity

E. Property Damage

F. Out-of-Pocket Expenses

6.2 Total Economic Damages

6.3 Non-Economic Damages

☐ Physical pain and suffering (past and ongoing)
☐ Mental and emotional distress
☐ Loss of enjoyment of life
☐ Loss of consortium (spouse: [________________________________])
☐ Disfigurement and scarring
☐ Inconvenience
☐ Permanent impairment
☐ [________________________________]

Non-Economic Damages Claimed: $[________]

6.4 Total Compensatory Damages

7. INSURANCE COVERAGE ANALYSIS

7.1 Tortfeasor's Liability Coverage

7.2 Claimant's Coverage

DELAWARE INSURANCE NOTE: Section 2118(a)(1) of Title 21 ties required liability coverage to the Financial Responsibility Law's limits. Under § 2118(a)(2), the minimum PIP limit is $15,000 per person / $30,000 per accident for the total of covered expenses and lost earnings, subject to the statute's scope and permitted policy terms. Section 3902 of Title 18 addresses UM/UIM coverage, not PIP.

7.3 PIP Benefit Coordination

7.4 Coverage Adequacy Assessment

☐ Claimant's damages are within tortfeasor's policy limits
☐ Claimant's damages exceed tortfeasor's policy limits — excess exposure
☐ UM/UIM claim may be necessary
☐ Identify damages available under 21 Del. C. § 2118(a)(2) or (a)(3) and avoid including amounts barred in an action against the tortfeasor by § 2118(h), whether or not PIP benefits were paid

8. PREJUDGMENT INTEREST (6 Del. C. § 2301)

FORMAL SETTLEMENT DEMAND FOR PREJUDGMENT INTEREST PURPOSES

Pursuant to 6 Del. C. § 2301(d), this letter is the Claimant's written settlement demand and remains open for at least 30 days after delivery to the defendant.

Defendant delivery: Send a copy of this demand to [DEFENDANT NAME] at [DEFENDANT ADDRESS] by [DELIVERY METHOD], and retain proof of delivery. The statutory written demand must be extended to the defendant.

Key requirements:

• Written demand extended to defendant before trial and valid for at least 30 days
• In a qualifying Superior Court or Court of Common Pleas tort action, the damages on which final judgment is entered must exceed the demand
• Rate: five percentage points over the Federal Reserve discount rate, including any surcharge, under § 2301(a)
• Calculated from the date of injury: [__/__/____]

Settlement demand amount (for § 2301 purposes): $[________]
Date delivered to defendant: [__/__/____]

Demand open through (at least 30 days after delivery): [__/__/____]

If this matter proceeds to trial and the statutory conditions are met, prejudgment interest will be added to a qualifying final damages judgment from the date of injury at the rate specified in § 2301(a).

9. SETTLEMENT DEMAND

9.1 Demand Amount

Based on the foregoing analysis, the Claimant hereby demands the total sum of:

$[________]

to fully and finally resolve all claims arising from the incident of [__/__/____].

9.2 Response Deadline

This demand shall remain open for at least thirty (30) calendar days after delivery to the defendant, through [__/__/____].

9.3 Consequences of Non-Response

1. Filing of a civil complaint in the Superior Court of the State of Delaware, [________________________________] County
2. Prejudgment interest exposure under 6 Del. C. § 2301 if judgment exceeds demand
3. Pursuit of available damages, interest, and costs

10. RESERVATION OF RIGHTS

☐ To amend or supplement this demand based on additional information
☐ To file suit at any time prior to expiration of the statute of limitations
☐ To seek prejudgment interest under 6 Del. C. § 2301
☐ To pursue claims against additional parties
☐ To file a UM/UIM claim against Claimant's own insurer
☐ All other rights and remedies available under Delaware law

11. ENCLOSED DOCUMENTS AND EXHIBITS INDEX

Medical Records and Bills

☐ Emergency room records and bills — [________________________________]
☐ Hospital admission/discharge records — [________________________________]
☐ Primary care physician records — [________________________________]
☐ Specialist consultation records — [________________________________]
☐ Physical therapy / rehabilitation records — [________________________________]
☐ Surgical records and operative reports — [________________________________]
☐ Diagnostic imaging reports — [________________________________]
☐ Mental health treatment records — [________________________________]
☐ Pharmacy / prescription records — [________________________________]
☐ Life care plan — [________________________________]

Liability Documentation

☐ Police / incident report — Report No. [________________________________]
☐ Photographs of accident scene
☐ Photographs of vehicle / property damage
☐ Photographs of injuries
☐ Witness statements
☐ Surveillance / dashcam footage

Financial Documentation

☐ Employer verification of lost wages
☐ Tax returns (prior [____] years)
☐ Vocational assessment / economic loss report
☐ Property damage estimate / repair invoice
☐ Out-of-pocket expense receipts

Insurance Documentation

☐ Declaration page — Tortfeasor's policy
☐ Declaration page — Claimant's policy
☐ PIP benefits documentation / exhaustion letter

12. SIGNATURE AND CERTIFICATION

Respectfully submitted,

______________________________________
[Attorney Name]
[Firm Name]
Delaware Bar No. [________________________________]
[Street Address]
[City], Delaware [ZIP]
Telephone: [________________________________]
Email: [________________________________]

Date: [__/__/____]