Should I File a Counterclaim in a Car Accident Case?


The causes of car accidents often are not apparent. The drivers involved often dispute the causes and blame the other for causing the accident. When both drivers dispute who caused an accident, that is a good time to retain the services of a car accident lawyer. The insurers will have to investigate, and a lawsuit might be filed.

If you are involved in a disputed car accident and the other driver files a claim accusing you of causing the accident, you should file a counterclaim. When you file a counterclaim, you force the insurers to review the situation and put the other driver on the defensive. You also might prevail in a court case filed by the other driver.

Examples of Counterclaim Causes of Action

Delaware uses a fault system to determine who is liable for causing accidents. A disputed case that winds up in court enables the defendant to file a counterclaim. The same is true of the claims process used by auto insurers.

Commonly listed counterclaim causes of action include:

  • Loss of income
  • Medical costs
  • Pain and suffering
  • Vehicular and other property damage

Filing a counterclaim does not automatically mean you will prevail. You need to provide evidence that supports your counterclaim. The other driver needs to provide evidence that supports a claim against you, as well.

Evidence could include witness statements, video footage of the accident, photographs of the accident scene, and other evidence that might better determine which driver caused the accident.

Delaware’s PIP Law Allows Lawsuits

Delaware’s optional no-fault auto insurance policy is called personal injury protection (PIP) and automatically covers the medical costs arising from an accident, no matter who caused it.

A PIP policy helps to reduce the number of lawsuits filed due to vehicular accidents, but it does not apply to property damage or pain and suffering. Even if you have a PIP policy, you still could file a claim or a counterclaim arising from an accident.

A Delaware car accident lawyer can help you to determine whether you should file a claim or a counterclaim following an accident.

Comparative Liability Applies in Delaware

Car accidents often have more than one driver who significantly contributes to making it happen. Delaware is a comparative liability state that will reduce a settlement amount based on a driver’s comparable negligence in causing a car accident.

Maybe one motorist is driving under the influence of drugs or alcohol while the other is texting while driving. Such dual negligent and unlawful driving practices could make both drivers at least partly liable for causing the accident, although the DUI offender likely would get the majority of the blame.

If you are determined to be partly responsible for causing an accident, any settlement that the other driver’s insurer pays could be lowered by the percentage of your comparable liability. If you are found to be 20 percent at fault, your settlement would be 80 percent of what it would have been if the other driver were fully at fault.

Comparative liability is another reason why you should file a counterclaim when the other driver accuses you of causing an accident. Comparative liability also applies in lawsuits.

File Strong Claims with Help from an Experienced Wilmington Car Accident Lawyer at Rhoades & Morrow

You can get help with your accident claims from a Wilmington car accident lawyer at Rhoades & Morrow by calling (302) 427-9500 or contact us online to schedule a free consultation at our law office in Wilmington, Delaware. With offices in all three counties of Delaware, we serve clients throughout the state.


Delaware Injury Lawyers

R & M Lawyers
Rhoades & Morrow

Our attorneys provide exceptional legal service with a personal touch. Since our founding in 1990, we have helped thousands of Delaware citizens obtain full and just compensation for personal injury claims. We have gained an excellent reputation as the “go to” law firm. Let us put our decades of experience to work for you.

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