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Delaware: Election of Remedies Issue Depends Upon Resolution to Final Judgment, Not Successful Resolution Question

July 24, 2015 (2 min read)







As is the case in a number of states, Delaware allows an injured employee of an uninsured employer two avenues of relief: (a) to pursue workers’ compensation benefits against the employer with the Industrial Accident Board, and (b) to sue the employer in tort. Where an employee initially sought workers’ compensation benefits, but then withdrew that petition and filed a negligence action against the employer (and others), only later to file a second petition for comp benefits, a determination by the IAB that the second petition was time-barred by the applicable statute of limitations amounted to a resolution of that avenue of relief, held a Delaware court. Consequently, the employer was entitled to summary judgment in the negligence action on election of remedy grounds. The employee contended that there was an election only after a successful resolution of the avenue of relief. The court, quoting Larson’s Workers’ Compensation Law, recognized that the issue of whether an employee has elected a remedy against an uninsured employer was “worrisome” when the employee initially chose an unsuccessful remedy. Indeed, filing the workers’ compensation claim itself would not bar recovery under a tort theory. Here, however, the situation was different. Resolution of one avenue of relief—the workers’ compensation claim—had been resolved in a final judgment. Pursuing a claim that eventually results in dismissal for being time-barred is in fact a valid election, although this is a harsh result, said the court. The court stressed that there was no evidence that the employee had mistakenly pursued what he believed to be an available remedy. Knowing pursuit of the less advantageous of the two remedies to the point of dismissal for being time-barred is still a valid election of a remedy.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to

See Maravilla-Diego v. MBM Constr. II, LLC, 2015 Del. Super. LEXIS 348 (July 21, 2015) [2015 Del. Super. LEXIS 348 (July 21, 2015)]

See generally Larson’s Workers’ Compensation Law, § 102.03 [102.03]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.









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