Construction Claim Rules in Delaware

Statutory interest rate

5 points above the Fed discount rate (contract default, capped); same formula or contract rate, whichever is less (post-judgment)

Where a written agreement doesn't set its own rate, the default legal rate is 5 percentage points above the Federal Reserve discount rate (including any surcharge). A written agreement may set a rate up to that same ceiling, except for loans over $100,000 not secured by the borrower's primary residence, where the cap is removed entirely (potentially relevant to larger commercial construction disputes). Postjudgment interest is the same formula or the contract rate, whichever is less.

Compounding: Not specified in the statute; Delaware Court of Chancery has discretion over simple vs. compound prejudgment interest in equity cases, but for a straightforward law-side contract claim the statute itself is silent.

Citation: 6 Del. C. § 2301

Source: https://law.justia.com/codes/delaware/title-6/chapter-23/section-2301/

Last checked: 2026-08-25

Accrual: breach of contract claim

From when payment was due, following the general compensation principle that delay itself must be compensated

Delaware's Supreme Court has explained that interest accumulates from the date payment was due the plaintiff, because full compensation requires an allowance for the detention of the compensation awarded, citing Moskowitz v. Mayor & Council of Wilmington. In practice this is the date payment became due under the contract, though a specific damages figure may still need to be determined by the trial court.

Citation: Moskowitz v. Mayor & Council of Wilmington; discussed in Brandywine Smyrna, Inc. v. Millennium Builders, LLC, 34 A.3d 482 (Del. 2011)

Source: https://law.justia.com/cases/delaware/supreme-court/2011/53-2011.html

The link goes to Brandywine Smyrna, a later Delaware Supreme Court opinion that quotes and applies the Moskowitz rule.

Accrual: property damage / tort claim

Conditional: only available with a qualifying pretrial settlement demand, then from the date of injury

Delaware's tort prejudgment-interest statute is narrower than a simple date-of-loss rule. It requires the plaintiff to have made a written settlement demand at least 30 days before trial, in an amount less than the final judgment; only if that condition is met does interest run from the date of injury. Without a qualifying demand, no prejudgment interest applies to the tort/property-damage claim.

Citation: 6 Del. C. § 2301(d)

Source: https://delcode.delaware.gov/title6/c023/

This is a real, easy-to-miss procedural gate: failing to make a timely, sufficiently low written settlement demand can forfeit prejudgment interest entirely on an otherwise strong property-damage claim.

Actual Cash Value rule

Fair market value, broad-evidence style (replacement cost is evidence, not the deciding measure)

The Delaware Supreme Court held fair market value, what a willing buyer would pay a willing seller, is the proper ACV standard, expressly rejecting replacement cost as determinative on its own ('not a synonym' for fair market value). Appraisals, owner testimony, assessments and replacement-cost evidence are all admissible to help the fact-finder reach a value, with the trial judge weighing the evidence.

Citation: Metropolitan Mut. Fire Ins. Co. v. Carmen Holding Co., 220 A.2d 778 (Del. 1966)

Source: https://law.justia.com/cases/delaware/supreme-court/1966/220-a-2d-778-3.html

ACV statute or regulation

No Delaware statute defines the ACV computation formula; Delaware has adopted the general Unfair Claims Settlement Practices Act, but ACV computation itself is governed by policy language and case law (parties in reported disputes have agreed ACV = replacement cost less depreciation, without a controlling statutory formula).

Delaware has adopted the NAIC Unfair Claims Settlement Practices Model Act framework governing claims-handling conduct generally. No Delaware statute specifically defines how actual cash value or depreciation is to be computed for property-insurance claims.

Source: https://www.eagle-law.com/wp-content/uploads/Paper-S.Backus-LWoodrow-FairClaims-Handling.pdf

Recoverable depreciation holdback

No Delaware statute or regulation sets a deadline for releasing withheld depreciation or addresses labor depreciation, so the policy terms control.

Delaware has adopted the model unfair claims settlement framework, but no Delaware statute, regulation or bulletin on holdback timing or labor depreciation has been identified. Read the policy's replacement cost and depreciation provisions.

Source: https://www.mwl-law.com/rcv-acv-and-the-depreciation-of-labor/

“No damages for delay” clause enforceability

Enforceable but strictly construed, with an exception for the owner's own negligence, recklessness, or willful misconduct

Federal courts applying Delaware law to public housing-authority construction disputes have held a no-damages-for-delay clause enforceable but construed strictly against the party invoking it and won't enforce it where the delay results from the owner's own negligence, recklessness, or willful misconduct.

Citation: F.D. Rich Co. v. Wilmington Hous. Auth., 392 F.2d 841 (3d Cir. 1968); Anthony P. Miller, Inc. v. Wilmington Hous. Auth., 165 F. Supp. 275 (D. Del. 1958)

Source: https://50-state.watttieder.com/states/delaware/

Both decisions are federal court decisions applying Delaware law to housing authority projects. No Delaware state appellate decision on no-damages-for-delay clauses has been identified, so treat the rule as persuasive rather than settled by Delaware's own courts.

Construction contract filing deadline

3 years generally; written contracts of $100,000+ may extend up to 20 years if the contract itself says so

Delaware's general limitations period for an action based on a promise (including an ordinary contract claim) is 3 years from accrual. A newer statute lets the parties to a written contract, agreement, or undertaking worth at least $100,000 specify their own longer limitations period directly in that writing, up to 20 years from accrual, so the effective deadline can differ significantly depending on what the contract itself says. Two deadlines sit in front of that one on most construction claims. A mechanic's lien and a payment bond claim each run on their own, far shorter clock, counted from last furnishing rather than from breach and missing either one removes the security while leaving the contract claim alive but unsecured. Check those dates first. Accrual is the other half of the question: the period runs from breach, which on a payment dispute is usually the date payment came due rather than the date the work was done.

Citation: 10 Del. C. § 8106

Source: https://law.justia.com/codes/delaware/title-10/chapter-81/section-8106/

Check the specific contract's own text for an extended-limitations provision before assuming the default 3-year period applies; on a large commercial project the parties may have already contracted around it.

State unemployment insurance (SUTA)

New employers pay 1.0% plus a 0.2% supplemental assessment. The taxable wage base is $14,500 for 2026 under a legislated phase-in ($12,500 in 2025, $16,500 from 2027).

House Bill 433 set the new-employer rate at 1% and every employer also pays the 0.2% Operations and Technology Assessment on top of its basic rate. The same law fixes the taxable wage base at $12,500 for 2025, $14,500 for 2026 and $16,500 from 2027. Delaware has historically assessed new construction employers at a construction-industry average rate, so check the assessment rate notice for a construction business.

Citation: Delaware Department of Labor, Division of Unemployment Insurance; House Bill 433

Source: https://news.delaware.gov/2025/02/03/delaware-division-of-unemployment-insurance-announces-new-tax-schedules-for-2025/

Last checked: 2026-09-17

Workers' compensation rating

NCCI advisory rates and class codes apply

Delaware is an NCCI state. Private carriers use NCCI advisory loss costs and standard classification codes, filed with and regulated by the Delaware Department of Insurance. There is no exclusive state fund.

Citation: NCCI, Delaware state rate/rule filings; Delaware Department of Insurance

Source: https://www.icrb.net/references/independent-bureaus-ncci-and-wcio/

Prevailing wage law

State prevailing-wage law, 29 Del. C. Section 6960

Delaware has its own prevailing wage statute under 29 Del. C. Section 6960, administered by the Department of Labor's Division of Industrial Affairs. It applies to state-funded public works contracts exceeding $500,000 for new construction (including painting and decorating) and $45,000 for alteration, repair, renovation, rehabilitation, demolition or reconstruction work. Wage rates are set by county and craft based on collective bargaining agreement rates and covered contractors must submit weekly certified payrolls.

Citation: 29 Del. C. Section 6960; Delaware Department of Labor, Division of Industrial Affairs

Source: https://law.justia.com/codes/delaware/title-29/chapter-69/subchapter-iv/section-6960/

Comparative / contributory negligence rule

Modified comparative fault, recovery barred above 50% fault (51% bar)

Recovery is reduced in proportion to fault and barred once the worker is more than 50% at fault. A worker exactly 50% at fault still recovers half.

Citation: Del. Code Ann. tit. 10, § 8132

Source: https://www.legis.delaware.gov/SessionLaws/Chapter?id=23650

Verified against: statute text of Del. Code Ann. tit. 10, s 8132 as enacted

Non-economic damages cap

No general cap on non-economic damages

Most states cap non-economic damages only in medical malpractice actions, which does not reach a third-party construction claim. Economic losses, medical bills, lost wages, future earning capacity, are not capped by these statutes.

OSHA plan

Federal OSHA (no state plan)

Delaware has no OSHA-approved state plan; both public and private employers fall under federal OSHA jurisdiction. Under federal jurisdiction the citation is issued by an OSHA area office and contested before the federal Occupational Safety and Health Review Commission. Federal OSHA does not cover state and local government employees, so a public employee injured on a public job falls outside it. Reporting deadlines are a work-related fatality within 8 hours, an inpatient hospitalisation, amputation or loss of an eye within 24 hours. For a construction claim the inspection file matters more than the citation: photographs, measurements, witness statements and the inspector's narrative are usually obtainable and are often the best contemporaneous record of the site.

Citation: 29 U.S.C. § 667 (State Plan roster)

Source: https://www.osha.gov/stateplans

Weight of an OSHA violation in a negligence case

Delaware requires OSHA-type regulations to be adopted by the state legislature before they can serve as a basis for negligence per se; absent that, OSHA standards remain admissible as evidence contributing to the reasonableness inquiry.

The Delaware Supreme Court held that a trial court's jury instruction stating OSHA violations constituted negligence per se was reversible error, because administrative regulations must be promulgated pursuant to state legislative directive to serve as the basis for negligence per se and Delaware's legislature had not formally adopted federal OSHA standards. OSHA standards may still legitimately contribute to the 'total mix of what is reasonable conduct' for the jury's consideration. Evidence rather than negligence per se means the violation goes to the jury as one fact among several. The worker still proves duty, breach, causation and damages in the ordinary way and the defendant can argue the standard did not apply to it, that the cited condition did not cause this injury, or that the citation was contested or withdrawn. The reverse is also true: compliance with OSHA is not a defence, since the standards are a floor rather than a definition of reasonable care.

Citation: Toll Brothers v. Considine, 706 A.2d 493, 494, 498 (Del. 1998).

Source: https://storage.googleapis.com/jnl-bcls-j-bclr-files/journals/1/articles/232/63a30c0a100a2.pdf

Third-party contribution against the employer

Delaware assigns compensation for a subcontractor's employee to that subcontractor alone (19 Del. C. § 2311), so the upstream contractor is not immune and can be sued in tort even when it directed the work.

In Dickinson v. Eastern Railroad Builders, Inc., an equipment operator employed by an excavation subcontractor took day-to-day orders from the upstream railroad contractor for four months and was hurt following that contractor's instruction. He collected compensation from his own employer's carrier, then sued the upstream contractor. The Delaware Supreme Court held that where a contractor and subcontractor relationship exists, § 2311 assigns all compensation rights to the subcontractor, which displaces the usual right-to-control test. Because the subcontractor alone owes compensation, the subcontractor alone is immune from common law suit, so the negligence claim against the upstream contractor could proceed. Third-party claims otherwise target owners, contractors, manufacturers and motorists based on independent duty, notice, control, negligent undertaking or product defect.

Citation: 19 Del. C. §§ 2304, 2311; Dickinson v. Eastern R.R. Builders, Inc., 403 A.2d 717 (Del. 1979)

Source: https://law.justia.com/cases/delaware/supreme-court/1979/403-a-2d-717-3.html

Injury-severity gate on contribution claims

Narrow intent exception: a tort action against the employer requires facts showing the employer intended to injure the worker.

19 Del. C. § 2304 makes workers' compensation the exclusive remedy. In Rafferty v. Hartman Walsh Painting Co., a painter fell 72 feet to his death while painting an I-95 bridge. The Delaware Supreme Court held that because of the exclusivity provisions, his widow could not maintain a tort action against the employer without alleging facts which, if true, show an intention by the employer to injure the employee. In practice exclusivity takes the direct employer off the tort table entirely, whatever the OSHA file shows. The claim runs against the other parties on the site: the general contractor, the owner, another subcontractor, an equipment manufacturer. The employer or its carrier then asserts a lien against whatever the worker recovers from those parties, so the figure the worker actually keeps is the recovery less the lien, the fee and the costs. Whether the lien is reduced for the cost of obtaining the recovery is a separate state question worth asking early, because it moves the net more than most people expect.

Citation: 19 Del. C. § 2304; Rafferty v. Hartman Walsh Painting Co., 760 A.2d 157 (Del. 2000).

Source: https://caselaw.findlaw.com/de-supreme-court/1160403.html

Distinctive state doctrine

Specific two-part implied-indemnification test tied to working on the third party's premises; explicitly rejected Rhode Island's broader 'special relationship' test; construction-licensing verification duty for out-of-state hires

Delaware courts apply a specific two-part test for implied contractual indemnification (following Precision Air and Diamond State Telephone v. University of Delaware): the contract between employer and third party must require the employer to (1) perform work in a workmanlike manner and (2) expressly or impliedly indemnify the third party for claims arising from the employer's own negligence; and this implied-indemnity route exists only where the employer performs services for the third party under a contract on the third party's own premises. Delaware courts have explicitly declined to adopt the broader 'special relationship' test used in Rhode Island (Roy v. Star Chopper) as an alternative route to indemnification. Separately, Delaware has a distinctive construction-specific compliance duty: every Delaware construction or contracting business that employs an out-of-state business (for work that would require Delaware contractor licensing) must verify that out-of-state business's licensing status in any business transaction.

Citation: 19 Del. C. § 2304 (exclusive remedy); § 2371(f) (out-of-state construction/contracting business licensing-verification duty).

Source: https://delcode.delaware.gov/title19/c023/sc04/index.html