STATE OF DELAWARE CONSTRUCTION COMPENDIUM OF LAW - Prepared by Cooch and Taylor 1000 West Street, 10th Floor Wilmington, DE 19899-1680
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STATE OF DELAWARE
CONSTRUCTION
COMPENDIUM OF LAW
Prepared by
Cooch and Taylor
1000 West Street, 10th Floor
Wilmington, DE 19899-1680
302-984-3800
www.coochtaylor.com
Version 2021PRE-SUIT NOTICE OF CLAIM AND OPPORTUNITY TO CURE
In the construction context, there are no statutory requirements that a party provide pre-suit
notice prior to initiating an action for breach of warranty. The courts, however, have dismissed a
homeowner’s claims for non-compliance with the notice provisions contained in their warranty.1
The courts will enforce contractual pre-suit notice provisions between parties;2 however, such
provisions are strictly construed.3
Pre-suit notice of claims is required when the suit involves certain municipalities as defendants.4
No claims for damages relating to physical injuries, death, or injury to property and alleging
negligence against the City of Wilmington or any of its departments, officers, agents or
employees may be brought, unless written notice is provided to the Mayor within one year of the
date of such injury, denoting the time, place and manner of injuries sustained.5
STATUTE OF LIMITATIONS AND REPOSE
A. BREACH OF WARRANTY AND NEGLIGENCE
10 Del. C. § 8106 establishes the statute of limitations for breach of warranty and negligence
claims, which states:
(a) No action to recover damages for trespass, no action to regain possession of personal
chattels, no action to recover damages for the detention of personal chattels, no action to
recover a debt not evidenced by a record or by an instrument under seal, no action based
on a detailed statement of the mutual demands in the nature of debit and credit between
parties arising out of contractual or fiduciary relations, no action based on a promise, no
action based on a statute, and no action to recover damages caused by an injury
unaccompanied with force or resulting indirectly from the act of the defendant shall be
brought after the expiration of 3 years from the accruing of the cause of such action…
The cause of action for a breach of warranty accrues on the date of the settlement.6 The cause
of action for a negligence claim accrues at the time of the alleged wrongful act – even if the
plaintiff is ignorant.7 The alleged wrongful act is generally the time of injury.
1
See Commercial Union Ins. Co. v. S&L Contractors, Inc., 2002 WL 31999352, *2 (Del. Com. Pl.).
2
U.S. Bank Nat. Ass’n v. U.S. Timberlands Klamath Falls, L.L.C., 2004 WL 1699057, *3, (Del. Ch.) (citing Harper
v. Del. Valley Broadcasters, 743 F. Supp. 1076 (D. Del. 1990) aff’d, 932 F.2d 959 (3d Cir. 1991)).
3
See Novipax Holdings LLC v. Sealed Air Corp., 2017 WL 5713307, at *9 (Del. Super. Ct. Nov. 28, 2017).
4
10 Del. C. § 8124.
5
See 10 Del. C. § 8124; See also City of Wilmington v. Spencer, 391 A.2d 199, 202 (Del. 1978); Sadler v. New
Castle County, 524 A.2d 18, 26 (Del. Super. 1987).
6
Abdi v. NVR, Inc., 2007 WL 2363675, at *3 (Del. Super. Aug. 17, 2007), aff'd, 945 A.2d 1167 (Del. 2008)
7
Washington House Condominium Ass'n of Unit Owners v. Daystar Sills, Inc., 2017 WL 3412079, at *17 (Del.
Super. Aug. 8, 2017).
Version 20211. Tolling – Tolling make work to suspend the limitations period where the facts which
give rise to an action “were so hidden that a reasonable plaintiff could not timely discover
them.”8
• The doctrine of inherently unknowable injuries may work to halt the limitations
period where the plaintiff was blamelessly ignorant. To show blameless
ignorance, “there must have been no observable or objective factors to put a party
on notice of an injury…” Blameless ignorance can be established by showing
“justifiable reliance on a professional or expert whom [the plaintiff] had no
ostensible reason to suspect of deception.”9
• Fraudulent Concealment will toll the limitations period if the defendant
“intentionally throws the plaintiff off the trail of inquiry.”10
• Equitable tolling may apply: “(1) where the defendant misled the plaintiff, (2)
where the plaintiff was prevented from asserting his rights in some extraordinary
way, and (3) where the plaintiff has timely asserted his rights mistakenly in the
wrong forum.”11
B. BREACH OF CONTRACT
10 Del. C. 8127 establishes the statute of limitations for alleged deficiencies in the
construction of improvements to commercial real property. The statute operates like a statute
of repose stating:
(b) No action, whether in or based upon a contract (oral or written, sealed or unsealed), in
tort, or otherwise, to recover damages or for indemnification or contribution for damages
. . . shall be brought against any person performing or furnishing, or causing the
performance or furnishing of, any such construction of such an improvement or against
any person performing or furnishing, or causing the performing or furnishing of, any such
designing, planning, supervision, and/or observation of any such construction or manner
of construction of such an improvement, after the expiration of 6 years from whichever of
the following dates shall be earliest:
a. The date of purported completion of all the work called for by the contract as
provided by the contract if such date has been agreed to in the contract itself;
b. The date when the statute of limitations commences to run in relation to the
particular phase or segment of work performed pursuant to the contract in which the
alleged deficiency occurred, where such date for such phase or segment of work has
been specifically provided for in the contract itself;
8
Washington House Condominium Ass'n of Unit Owners v. Daystar Sills, Inc., 2017 WL 3412079, at *18 (Del.
Super. Aug. 8, 2017).
9
Crest Condo. Ass'n v. Royal Plus, Inc., 2017 WL 6205779, at *3 (Del. Super. Dec. 7, 2017).
10
Id.
11
Washington House Condominium Ass'n of Unit Owners, 2017 WL 3412079, at *18.
Version 2021c. The date when the statute of limitations commences to run in relation to the
contract itself where such date has been specifically provided for in the contract itself;
d. The date when payment in full has been received by the person against whom the
action is brought for the particular phase of such construction or for the particular
phase of such designing, planning, supervision, and/or observation of such
construction or manner of such construction, as the case may be, in which such
alleged deficiency occurred;
f. The date when the construction of such an improvement as called for by the
contract has been substantially completed;
g. The date when an improvement has been accepted, as provided in the contract, by
the owner or occupant thereof following the commencement of such construction;
h. For alleged personal injuries also, the date upon which it is claimed that such
alleged injuries were sustained; or after the period of limitations provided in the
contract, if the contract provides such a period and if such period expires prior to the
expiration of 2 years from whichever of the foregoing dates is earliest.
OWNER’S CAUSES OF ACTION
A. BREACH OF CONTRACT
A plaintiff must prove three elements in a breach of contract claim, which are:
(1) A contract existed;
(2) The defendant breached an obligation imposed by the contract; and
(3) The breach resulted in damage to the Plaintiff.12
The standard remedy for breach of contract is based on the reasonable expectations of the
parties.13 Reliance, however, is not a necessary element in the breach of contract analysis.14
Restatement (Second) of Contracts § 241 (1981) provides:
In determining whether a failure to render or to offer performance is material, the following
circumstances are significant:
(a) the extent to which the injured party will be deprived of the benefit which he
reasonably expected;
(b) the extent to which the injured party can be adequately compensated for the part of
that benefit of which he will be deprived;
(c) the extent to which the party failing to perform or to offer to perform will suffer
forfeiture;
(d) the likelihood that the party failing to perform or to offer to perform will cure his
failure, taking account of all the circumstances including any reasonable assurances;
(e) the extent to which the behavior of the party failing to perform or to offer to perform
comports with standards of good faith and fair dealing.
12
VLIW Technology, LLC v. Hewlett-Packard Co. Stmicroelectronics, Inc., 840 A.2d 606, 612 (Del. 2003); Markow
v. Synageva Biopharma Corp., 2016 WL 1613419, at *4 (Del. Super. Mar. 3, 2016).
13
Duncan v. TheraTx, Inc., 775 A.2d 1019, 1022 (Del. 2001)
14
Universal Enter. Grp., L.P. v. Duncan Petroleum Corp., 2013 WL 3353743, at *17 (Del. Ch. July 1, 2013).
Version 2021B. BREACH OF WARRANTY
An alleged breach of warranty can be grounded on express warranty provisions in the
contract or based on warranties implied by law.
1. Breach of Express Warranty
Purchasers and sellers are free to contract for whatever express warranties they wish,
provided that consideration is given.15 Home purchasers are free to, and frequently do,
purchase warranties from third party companies. The warranties provided in the contract may
be orally modified, notwithstanding a contractual provision requiring a written
modification.16
2. Breach of Implied Warranty
Delaware does not recognize a general implied warranty of habitability distinct from the
implied warranty of good quality and workmanship.17 The implied warranty of good quality
and workmanship applies to both new construction and renovated or reconstructed
structures.18 A developer may contract away the implied warranty by including clear,
unambiguous language in the contract specifically excluding the implied warranties.19 The
implied warranties are generally only available to purchasers of new dwellings and the
warranty does not extend to subsequent purchasers.20
3. Additional Warranties
Local codes should be consulted in relation to residential construction, an area where local
legislators have largely decided to confer additional warranties.
C. NEGLIGENCE
1. General
To recovery under a theory of negligence, plaintiff must show: (1) proof of a duty of care, (2)
a breach of that duty, (3) proximate causation, and (4) damages.21
Negligence is subject to the same heightened pleading standard as fraud pursuant to Del.
Super. Civ. R. 9(b).22 “When pleading negligence, plaintiffs have to meet the heightened
standard of Rule 9(b), and must specify a duty, a breach of the duty, who breached the duty,
15
Duncan v. JBS Const., LLC, 2016 WL 1298280, at *2 (Del. Com. Pl. Mar. 31, 2016) (citing Council of Unit
Owners of Breakwater House Condo. v. Simpler, 1993 WL 81285, at *1 (Del. Super. Feb. 18, 1993).
16
See Pepsi-Cola Bottling Co. of Asbury Park v. Pepsico, Inc., 297 A.2d 28, 33 (Del. 1972).
17
Council of Unit Owners of Breakwater House Condominium v. Simpler, 603 A.2d 792, 793 (Del. 1992);
Bromwich v. Hanby, 2010 WL 8250796, at *3 (Del. Super. July 1, 2010).
18
Id.
19
Council of Unit Owners of Breakwater House Condominium, 603 A.2d 792, 793.
20
Council of Unit Owners of Sea Colony East, Phases III, IV, VI, VIII v. Carl M. Freeman Assocs., Inc., 1989 WL
48568 at *6 (Del. Super. 1989).
21
Campbell v. DiSabatino, 947 A.2d 1116, 1117 (Del. 2008).
22
De. Super. Civ. R. 9(b).
Version 2021what act or failure to act caused the breach, and the party who acted.”23Landowners must
protect business invitees from danger that is reasonably foreseeable.24 A contractor who is in
control of the workplace must provide a safe environment to work. Safety in the workplace is
not guaranteed. The contractor's duty is to exercise ordinary care, in light of the
circumstances, so that the workplace is reasonably safe.25
Delaware follows the general rule that the employer of an independent contractor is not liable
for the negligence of the contractor or his employees,26 however, Delaware follows several
exceptions found in § § 411 and 413 of the Restatement. The Particular Risk Doctrine,
states that a general contractor may be liable for the actions of the independent contractor if
the work was inherently dangerous.27 Delaware courts have held that as long as property
owners do not control the scope of independent contractor’s work, an independent
contractor's employee cannot use the Particular Risk Doctrine to sue employers that hire
independent contractors for work-related injuries.28
A second exception to the general rule for employer liability is negligent hiring practices. If
an employer negligently hired an independent contractor, the employer may be liable for the
negligence of the independent contractor and his employees.29 One who renders services in a
trade or profession is required to exercise the skill and knowledge normally held by members
of that trade or profession.30 If one holds oneself out as having superior skill or knowledge in
that trade or profession, then the person is held to a higher standard of care.31
2. Comparative Fault
Delaware courts utilize the doctrine of comparative fault, determining the proportionate fault
of the parties on an ad hoc basis.32 Assumption of the risk does not generally act as a bar to
recovery, but may be a factor in the apportionment of fault. However, where the plaintiff has
23
Rahaman v. J.C. Penney Corp., 2016 WL 2616375, at *1 (Del. Super. May 4, 2016).
24
Achtermann v. Bussard, 2007 WL 901642, at *4 (Del. Super. 2007), aff’d, 957 A.2d 1 (Del. 2008); Yancy v. Tri
State Mall Ltd. P'ship, 2014 WL 2538805, at *2 (Del. Super. May 29, 2014) (a landowner owes a duty to a business
invitee “to exercise reasonable care to protect him from foreseeable dangers that he might encounter while on the
premises”).
25
Rabar v. E.I. duPont de Nemours & Co., 415 A.2d 499, 506 (Del. 1980); DiSabitino Bros., Inc. v. Baio, 366 A.2d
508, 510 (Del. 1976).
26
Restatement (Second) of Torts § 409 (1965); Urena v. Capano Homes, Inc., 901 A.2d 145, 150 (Del. Super.
2006), aff'd, 930 A.2d 877 (Del. 2007).
27
O’Conner v. Diamond State Telephone, 503 A.2d 661 (Del. Super. 1985).
28
Roca v. E. I. du Pont de Nemours and Company, 842 A.2d 1238 (Del. 2004); See also Restatement (Second) of
Torts, § 414 (1965) (stating, “[o]ne who entrusts work to an independent contractor, but who retains the control of
any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to
exercise reasonable care, which is caused by his failure to exercise his control with reasonable care”); see also
Urena, 901 A.2d 145, 150 (Del. Super. 2006), aff'd, 930 A.2d 877 (Del. 2007) (“An owner or general contractor has
a duty to protect an independent contractor's employees when the owner or contractor retains active control over the
manner in which the work is carried out and the methods used.”) (internal quotations and citations omitted).
29
Urena v. Capano Homes, Inc., 930 A.2d 877, 880 (Del. 2007); Bowles v. White Oak, Inc., 1988 WL 97901 (Del.
Super. 1988).
30
Tydings v. Lowenstein, 505 A.2d 443, 445 (Del. 1986); Sweetman v. Strescon Indus., Inc., 389 A.2d 1319, 1324
(Del. 1978).
31
Norfleet v. Mid-Atl. Realty Co., 2001 WL 695547, at *5 n.12 (Del. Super. Apr. 20, 2001)
32
Spencer v. WalMart Stores East, 930 A.2d 881, 885 (Del. 2007).
Version 2021expressly relieved the defendant of a duty, known as the primary assumption of the risk,
recovery may be barred.33
3. Violation of a Statute
In Delaware, evidence of a violation of a statute is only a factor in the negligence analysis.
To prove a claim for negligence per se, a plaintiff must establish four elements: (1) the
statute in question was enacted for the safety of others; (2) the statutory violation proximately
caused the plaintiff's injury; (3) plaintiff was a member of the class protected persons; (4) the
statute established a standard of conduct designed to avoid the harm; 34 and (5) damages.35
4. Joint and Several Liability
The Delaware Uniform Contribution Among Tortfeasors Law, 10 Del. C. § 6301, et seq,
determines joint tortfeasor liability. So long as the total recovery is not in excess of the final
judgment, a plaintiff may recover against any or all of the defendants.36 To be considered
joint tortfeasors, the defendants must share a common liability to the plaintiff.37 The party
seeking the settling defendants’ credits bears the burden of establishing the joint tortfeasor
status of the settling defendants.38
D. MISREPRESENTATION AND FRAUD
To demonstrate fraud, the following elements must be proved:
1) A false representation, usually one of fact, made by the defendant;
2) The defendant's knowledge or belief that the representation was false, or was made with
reckless indifference to the truth;
3) An intent to induce the plaintiff to act or to refrain from acting;
4) The plaintiff's action or inaction taken in justifiable reliance upon the representation; and
5) Damage to the plaintiff as a result of such reliance.39
A false representation may be made by words or by conduct. A fact is important if a
reasonable person would act, or choose not to act based on the fact, or if the maker of the
misrepresentation knew another person would find it important.40
33
Koutoufaris v. Dick, 604 A.2d 390, 398 (Del. 1992); see also Helm v. 206 Massachusetts Ave., LLC, 107 A.3d
1074, 1078 (Del. 2014) (discussing the evolution and interplay between primary assumption of risk and secondary
implied assumption of risk).
34
NVF Co. v. Garrett Snuff Mills, Inc., 2002 WL 130536, at *1 (Del. Super. Jan. 30, 2002).
35
Robinson v. Oakwood Vill., LLC, 2017 WL 1548549, at *20 (Del. Ch. Apr. 28, 2017).
36
Brown v. Comegys, 500 A.2d 611, 613 (Del. 1985); In re Rural/Metro Corp. Stockholders Litig., 102 A.3d 205,
221 (Del. Ch. 2014).
37
Ferguson v. Davis, 102 A.2d 707 (1954).
38
In re Rural/Metro Corp. Stockholders Litig., 102 A.3d 205, 244 (Del. Ch. 2014) (this can be done through an
admission, usually in the settling documents, or through a determination at trial).
39
Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1074 (Del. 1983).
40
See Gaffin v. Teledyne, Inc., 611 A.2d 467, 472 (Del. 1992); Stephenson v. Capano Dev., Inc., 462 A.2d 1069,
1074 (Del. 1983); Harmon v. Masoneilan Intern, Inc., 442 A.2d 487, 499 (Del. 1982).
Version 2021Anti-reliance and integration clauses will not bar fraudulent inducement claims when the
alleged fraud is contained within the contract.41
E. STRICT LIABILITY
Delaware has specifically held the Uniform Commercial Code provisions on sales of goods
(6 Del. C. § 2-101 et seq.) preempted the field and prohibited the extension of the theory of
strict liability to the law of sales.42
F. OWNER’S STATUTORY REMEDIES
1. Delaware Consumer Fraud Act (6 Del. C. 2501, et seq.) covers cases of fraud and
misrepresentation in construction disputes. Under the Delaware Consumer Fraud Act, a
person can be liable for making false representation or concealing an important fact from
another in connection with the advertising or sale of any merchandise with the intention that
the other person will rely on said false representation or concealment of an important fact. An
individual that violates the statute may be liable even if he or she was unaware that it was
false, that an important fact had been concealed, or whether or not there was justifiable
reliance.43
Punitive damages cannot be recovered in the absence of compensatory damages.44 Punitive
damages are only permissible after a finding that the defendant's conduct was "outrageous,"
because of "evil motive" or "reckless indifference to the rights of others.”45 Inadvertence,
mistakes or errors in judgment which are mere negligence will not suffice.46
Delaware recognizes the benefit of the bargain rule and out-of-pocket measures for damages
in cases of fraud or deceit and for violations of the Consumer Fraud Act.
2. Deceptive Trade Practices Act
Sections 2531-2536 of 6 Del. C. enacted the Deceptive Trade Practices Act, codifying the
common law of unfair trade competition.47
In order to recover under the Deceptive Trade Practices Act, a party must have a basis for
injunctive relief.48 Individuals do not have standing to bring a claim under the Act; only
those involved in a trade or business or the Attorney General have standing to assert a claim
under the Act.49
COVERAGE AND ALLOCATION ISSUES
41
See Novipax Holdings LLC v. Sealed Air Corp., 2017 WL 5713307, at *13 (Del. Super. Ct. Nov. 28, 2017).
42
Cline v. Prowler Industries of Maryland, 418 A.2d 968 (Del. 1980).
43
6 Del. C. § 2511 et seq.; Teamsters Local 237 Welfare Fund v. AstraZeneca Pharm. LP, 136 A.3d 688, 693 (Del.
2016); Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1074 (Del. 1983); Nash v. Hoopes, 332 A.2d 411, 413
(Del. 1975); In re Brandywine Volkswagen, Ltd., 306 A.2d 24, 28-29, aff'd sub nom. Brandywine Volkswagen, Ltd.
v. State, 312 A.2d 632, 634 (Del. 1973).
44
Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1077 (Del. 1983).
45
Jardel Co., Inc. v. Hughes, 523 A.2d 518 (Del. 1987) (citing Restatement (Second) of Torts § 908 cmt. b (1979).
46
Id.
47
Gebelein v. Four State Builders, 1980 WL 20294, at *3 (Del. Ch. Feb. 24, 1983).
48
Lipson v. Anesthesia Servs., P.A., 790 A.2d 1261, 1290 (Del. Super. 2001)
49
Grand Ventures, Inc. v. Whaley, 632 A.2d 63 (Del. 1993).
Version 2021Standard commercial general liability (“CGL”) policies provide policyholders with insurance
against liability for all sums the insured becomes legally obligated to pay as damages because
of bodily injury or property damage caused by an occurrence. Whether coverage is triggered
under CGL polices depends on policy interpretation and application of the requirements that
the bodily injury or property damage occur during the policy period, and that such injury or
damage is caused by an occurrence. Delaware courts have taken divergent positions in
coverage and allocation cases. The courts have distinguished injuries-in-fact, that is, discrete
physical injuries or damage to property, from injuries which result from continuous conduct
which extends over a period of time. In determining when an “occurrence” happens under
applicable policies of insurance, Delaware courts undertake a fact-specific analysis.
Pursuant to current Delaware precedent, defective workmanship is not an occurrence under
standard CGL policies because the defective workmanship is not “accidental or unexpected”
nor “a fortuitous circumstance happening without human agency” but is within the control of
the worker.50
The Delaware Superior Court has applied a continuous trigger analysis to claims of pollution
resulting from leaching from a landfill.51
The Supreme Court has held that insuring agreement language providing for “indemni[ty] for
‘all sums’ which an insured is obligated to pay … caused by an occurrence” is inconsistent
with pro rata allocation based upon time on the risk.52 The Monsanto court, applying
Missouri law, held that, without an express proportional limitation in the applicable policy,
an insurer would be liable for the entirety of damages, up to the limits of coverage for the
applicable policy periods. But in E. I. du Pont de Nemours & Cocae, the Supreme Court
imposed a pro rata allocation based on time on the risk on equitable grounds, stating: “it is
illogical to compress all of this damage into one policy period and hold each insurer fully
liable. The presumption of continuous damage logically and fairly requires the imposition of
the modified pro rata allocation of damage.” 53
A. INDEMNITY/CONTRIBUTION/THIRD PARTY BENEFICIARIES
1. Contractual defense and indemnity provisions
50
Westfield Ins. Co., Inc. v. Miranda & Hardt Contracting & Bldg. Servs., L.L.C., 2015 WL 1477970, at *3 (Del.
Super. Mar. 30, 2015) (“a commercial generally liability policy … is not intended to serve as a performance bond or
guaranty of goods or services”); see also Bramble v. Old Republic Gen. Ins. Corp., 2017 WL 345144, at *8 (Del.
Super. Jan. 20, 2017) (“[I]f [] defective workmanship had caused injury to a person or damage to property other than
the [product itself], then this well might qualify as an ‘occurrence.’”).
51
See National Union Fire Insurance Co. v. Rhone-Poulenc Basic Chemicals Company, 1992 WL 22690, at *18-19
(Del. Super.) (finding that “every policy from the start of the injurious process is triggered”) (citing New Castle
County v. Continental Casualty Co., 725 F. Supp. 800, 809-812 (D. Del. 1989) (aff’d in part, rev’d in part); New
Castle County v. Hartford Acc. and Indem. Co., 933 F.2d 1162 (3d Cir. 1991)); but see Olde Colonial Village
Condominium Council v. Millers Mut. Ins. Co., 2002 WL 122885, at *10 (Del. Super. 2002) (rejecting the
continuous trigger analysis, finding that an engineer’s recommendations to evacuate a building, coupled with the
condemnation of the building equated to the “collapse” of the building: “a collapse provision’s trigger is the collapse
itself, not what led to it”).
52
See Monsanto Co. v. C.E. Heath Compensation and Liability Company, 652 A.2d 30, 34-35 (Del. 1994) (applying
Missouri law); cf. Hercules, Inc. v. AIU Insurance Co., et. al., 784 A.2d 481, 489 (Del. 2001) (holding that “pro rata
allocation is inconsistent with the ‘all sums’ provisions in the [applicable] policies”; finding that insurers who
agreed to indemnify for “all sums” in policies covering the applicable period were jointly and severally liable).
53
See E. I. du Pont de Nemours & Co. v. Admiral Ins. Co., 1995 WL 654020, at *15 (Del. Super.)
Version 2021Contractual provisions in construction contracts which purport to obtain indemnification for
a party’s own negligence are void as a matter of legislatively-defined public policy.54 The
Delaware Superior Court has held that when a construction contract contains a severability
clause, 6 Del. C. §2704(a) may invalidate only the parts of the agreement that indemnify a
party against that party’s own conduct.55 The extent to which indemnification clauses are
severable, however, depends upon the express language of the indemnification provision.56
Delaware courts have distinguished agreements to procure insurance from agreements to
indemnify. The Supreme Court has held that liability insurance purchased for another
remains enforceable when a party seeks coverage under that policy, despite the provisions of
6 Del. C. 2704(a).57 Where a party fails to honor their contractual agreement to purchase
insurance coverage for another, an enforceable cause of action for breach exists.58 The
Delaware Supreme Court has held that certain terms in an additional insured clause are
construed broadly under Delaware law.59
The common law recognized the right to indemnity only if it was based upon contract,
express or implied.60 While indemnity ordinarily arises out of contract, it may also be based
upon “equitable principles” and that term is equivalent to the term “principles of fairness or
justice.”61
Generally, contract provisions must be crystal clear and unequivocal in requiring a contractor
to assume all liability for damage claims, regardless of which party is guilty of negligence
actually causing the injury.62 Contracts relieving a party of its own negligence are not
favored, are strictly construed, and will not be interpreted to provide indemnification unless
the intent of the parties is so expressed in very clear terms.63
54
See 6 Del. C. § 2704(a); Alberici Const. Co. v. Mid-West Conveyor Co., Inc., 750 A.2d 518, 521 (Del. 2000); see
also Kempski v. Toll Bros., Inc., 582 F. Supp. 2d 636, 641 (D. Del. 2008) (“Under Delaware law … ‘a contractual
provision requiring one party to indemnify another party for the second party’s own negligence, whether sole or
partial, is against public policy and is void and unenforceable.’”) (applying Delaware law).
55
See Handler Corp. v. State Drywall Co., Inc. 2007 WL 3112466, at *3 (Del. Super.) (where an indemnification
provision between a contractor and subcontractor expressly provided that the subcontractor was required to
indemnify the contractor for the negligence of either party, and the contract contained a severability clause, the court
voided only the language of the provision requiring the subcontractor to indemnify the contractor for its own
negligence, and held that the rest of the indemnification provision, providing that subcontractor was required to
indemnify the contractor for vicarious liability, was enforceable); see also Menkes v. Saint Joseph Church, 2011 WL
1235225, at *3 (Del. Super. 2011); Patton v. 24/7 Cable Co., LLC, 2013 WL 1092147, at *4 (Del. Super.).
56
See Kempski v. Toll Bros., Inc., 582 F.Supp.2d 636, 641(D. Del. 2008) (applying Delaware law) (granting
Summary Judgment for the subcontractor, refusing to apply a severability clause to the indemnification provision,
holding that “the duties to indemnify for the conduct of the [contactor] and the actions of [the subcontractor] were
expressed together as a single obligation, and were “not severable … distinct[,] or distinguishable.”), citing Handler
Corp, 2007 WL 3112466, at *3.
57
See Chrysler Corporation v. Merrell & Garaguso, Inc., 796 A.2d 648 (Del. 2002); See also 6 Del. C. § 2704(b).
58
DaimlerChrysler Corporation v. Pennsylvania National Mut. Ins. Co., 2003 WL 1903766 (Del. Super. 2003).
59
See Pacific Ins. Co. v. Liberty Mut. Ins. Co., 956 A.2d 1246, 1257 (Del. 2008) (holding that the term “‘arising out
of’ is broadly construed to require some meaningful linkage between the two conditions imposed in the contract
[i.e., the contractors’] operations and the [landowner’s] resulting liability ….”).
60
Insurance Company of North American v. Waterhouse, 424 A.2d 675 (Del. 1980); Allstate Investigation Security
Agency, Inc. v. Turner Construction Co., 301 A.2d 273 (Del. 1972).
61
Clark v. Teeven Holding Co., Inc., 625 A.2d 869, 878 (Del. Ch. 1992).
62
State v. Interstate Amiesite Corp., 297 A.2d 41, 44 (Del. 1972).
63
Waller v. J.E. Brenneman Co., 307 A.2d 550 (Del. Super. 1973).
Version 2021In addition, where the contract is silent on indemnification, Delaware provides us with
several circumstances which can give rise to an implied obligation to indemnify. The first
arises from an implied duty of workmanlike performance. Others involve special
relationships in which a party with superior expertise or knowledge of a danger or risk of
danger may be held to indemnify another. Typically, if an indemnity provision specifically
addresses, and permits, indemnification in a situation where the negligence of the indemnitor
and indemnitee combine and concurrently cause a loss, that provision will be enforced.
Delaware courts permit parties, by contract, to provide that each party would bear the loss
proportionate to its fault.64
An employer is immune from contribution claims due to the exclusivity provisions of
Delaware’s worker’s compensation statute.65 However, the Supreme Court has held that
contractual claims for indemnification based upon express contract terms may be maintained
against a plaintiff’s employer.66 The Superior Court has held that even implied
indemnification claims may survive in certain cases where no express indemnification
provision exists on the face of the contract.67
2. Contribution
The Delaware Supreme Court defines contribution as “the right of one who has discharged a
common liability to recover from another who is also liable.”68 The right to contribution is
triggered when it is appropriate for liability to be apportioned among codefendants. In
Delaware, the right to contribution is governed by Delaware’s Uniform Contribution Among
Tortfeasors Act 10 Del. C. § 6301 et. seq. (the “DUCATA”). Under the DUCATA, parties
must be joint tortfeasors who share a common liability for contribution to be appropriate. A
joint tortfeasor is not entitled to contribution until he has, by payment, discharged the
common liability or has paid more than his pro rata share.69
3. Third party beneficiaries
Ordinarily, one must be a party to the contract to enforce it, however, the law has recognized
an exception to the general rule, and, in narrow circumstances, will allow a third-party
beneficiary to have an enforceable right.70 In order for third party beneficiary rights to be
64
Precision Air, Inc. v. Standard Chlorine of Delaware, Inc., 654 A.2d 403 (Del. 1995).
65
See 19 Del. C. § 2304; See also Precision Air, Inc. v. Standard Chlorine of Del., Inc., 654 A.2d 403, 407 (Del.
1995) (“Because the employer cannot be held liable as a joint tortfeasor, it is not obligated to provide contribution to
the third party.”).
66
See Precision Air, 654 A.2d at 407.
67
See Davis v. R.C. Peoples, Inc., 2003 WL 21733013 (Del. Super.); see also Thompson v. Murta Wiedemann, Inc.,
2010 WL 596504, at *2 (Del. Super.).
68
Reddy v. PMA Ins. Co., 20 A.3d 1281, 1284 (Del. 2011).
69
Builders & Managers, Inc. v. Dryvit Sys., Inc., 2004 WL 304357, at *2 (Del. Super. Feb. 13, 2004); see also In re
Rural/Metro Corp. Stockholders Litig., 102 A.3d 205, 243 (Del. Ch. 2014) (“the defendant must establish joint
tortfeasor status through a determination by some reliable means, which could be either judicially or by an
admission, that the settling party was liable in tort, i.e., a tortfeasor”) see also In re Rural/Metro Corp. Stockholders
Litig., 102 A.3d 205, 236 (Del. Ch. 2014) (holding that DUCATA does not bar contribution for intentional torts;
however, particularly reprehensible intentional torts might bar the right to contribution).
70
See Stuchen v. Duty Free Int'l, Inc., 1996 WL 33167249, at *9 (Del. Super. 1996)
Version 2021created, the parties to the contract must have intended to confer a benefit to the third party
and the benefit should be a material part of the contract.71
4. Subrogation waiver
Waiver of subrogation clauses in construction contracts are intended to limit a party’s
recovery when the property loss or damage is covered by insurance.72 Generally, Delaware
courts will uphold waiver of subrogation clauses unless they are unconscionable,
inconspicuous, or contracts of adhesion.73 The right to subrogation may be expressly waived
or impliedly waived by course of conduct.74
DAMAGES
Delaware courts have generally adhered to the Restatement of the Law in determining damages
in construction defect cases: “[I]f a party to a construction contract fails to perform its
obligations under the contract, the aggrieved party is entitled to damages measured by the
amount required to remedy the defective performance unless it is not reasonable or practicable to
do so.”75 Thus, the appropriate measure of damages is the cost of repair unless that is not
feasible, then the measure of damages will be diminution in value.76 Courts have refused to pro-
rate the cost of repair or replacement based on the already-expired useful lives of the allegedly
defective building components.77
A. Attorney’s fees
Delaware follows the “American Rule,” whereby a prevailing party is expected to pay its own
attorney’s fees and costs.78 Generally, Delaware courts may not order the payment of
attorney’s fees as part of costs to be paid by the non-prevailing party unless a statutory or
contractual basis exists for the award of such fees.79
71
See Insituform of North America, Inc. v. Chandler, 534 A.2d 257, 268 (Del. Ch. 1987); Lechliter v. Delaware
Dep't of Nat. Res. Div. of Parks & Recreation, 2015 WL 7720277, at *5 (Del. Ch. Nov. 30, 2015), reargument
denied sub nom. Lechliter v. Delaware Dep't of Nat. Res., 2016 WL 878121 (Del. Ch. Mar. 8, 2016) (A third-party
beneficiary has standing to enforce a contract where: “(i) the contracting parties ... intended that the third party
beneficiary benefit from the contract, (ii) the benefit [was] intended as a gift or in satisfaction of a pre-existing
obligation to that person, and (iii) the intent to benefit the third-party [was] a material part of the parties' purpose in
entering into the contract.”).
72
St. Paul Fire & Marine Ins. Co. v. Elkay Mfg. Co., 2003 WL 139775, at *5 (Del. Super. Jan. 17, 2003).
73
Middlesex Mut. Assur. Co. v. Delaware Elec. Signal Co., 2008 WL 4216145, at *4 (Del. Super. Sept. 11, 2008).
74
See Baio v. Commercial Union Ins. Co., 410 A.2d 502, 507 (Del. 1979).
75
See Council of Unit Owners v. Carl M. Freeman Associates, Inc., 564 A.2d 357, 361 (Del. Super. 1989) (citing
Farny v. Bestfield Builders, Inc., 391 A.2d 212, 214 (Del. Super. 1978)); Carey v. McGinty, 1988 WL 55336, at *6
(Del. Super. 1988); see also Restatement (First) of Contracts § 346 (1932).
76
Universal Enter. Grp., L.P. v. Duncan Petroleum Corp., 2013 WL 3353743, at *19 (Del. Ch. July 1, 2013).
77
Council of Unit Owners of Sea Colony E., Phase III Condo., on Behalf of Ass'n of Owners v. Carl M. Freeman
Assocs., Inc., 564 A.2d 357, 362 (Del. Super. Ct. 1989).
78
See Montgomery Cellular Holding Co. v. Dobler, 880 A.2d 206, 227 (Del. 2005).
79
See Casson v. Nationwide Ins. Co., 455 A.2d 361, 370 (Del. Super. 1982); but see Dover Historical Soc., Inc. v.
City of Dover Planning Com’n, 902 A.2d 1084, 1091 (Del. 2006) (“The Superior Court does hear cases in which it
is occasionally required to apply equitable principles. In such cases [, to control its own process,] the Superior Court
has jurisdiction to award attorneys’ fees even if no contract or statute requires it.”) (citing Burge v. Fidelity Bond &
Mortgage Co., 648 A.2d 414, 421-22 (Del. 1994)) (upholding award of attorneys’ fees in a Superior Court action
involving a mortgage foreclosure, which is inherently equitable).
Version 2021Where an action is commenced in bad faith or bad faith conduct arises during the course of
litigation, the bad faith exception may apply resulting in a fee shift.80 This exception applies
only in “extraordinary cases” and “the party seeking to invoke that exception must
demonstrate by clear evidence that the party from whom fees are sought … acted in subjective
bad faith.”81
B. Compensatory damages
In a contract action, a party may recover damages for those injuries which are reasonably
foreseeable or anticipated to flow from the breach.82 In a construction contract action,
compensatory damages have been equated to a plaintiff’s “‘out-of-pocket’ actual loss.”83
1. Betterment/economic waste
The primary type of damages for defective performance of a real estate construction
contract is the cost of repairing or remedying the defect.84 However, if this would result
in economic waste, the secondary measure of damages is diminution in value of the
property caused by the breach.85
Restatement (First) of Contracts § 346 provides that compensatory damages for defective
construction may be either:
(i) the reasonable cost of construction and completion in accordance with the contract, if
this is possible and does not involve unreasonable economic waste (repair rule); or
(ii) the difference between the value that the product contracted for would have had and
the value of the performance that has been received by the plaintiff, if construction and
completion in accordance with the contract would involve unreasonable economic waste
(value rule).86
C. Delay and disruption damages
Delaware courts have allowed delay damages where a construction contract provided for
same in a liquidated damages provision.87
D. Economic loss doctrine
Under the Economic Loss Doctrine, a party may recover in tort only if damages include
bodily injury or property damage.88 The economic loss doctrine was adopted to prohibit a
plaintiff from bringing a tort claim “where overlapping claims based in contract adequately
80
RBC Capital Markets, LLC v. Jervis, 129 A.3d 816, 877 (Del. 2015).
81
Id.
82
Clemens v. Western Union Telegraph Co., 28 A.2d 889, 890 (Del. Super. 1942).
83
Hazlett v. Pompeo, 2002 WL 32074651 (Del. Com. Pl. 2002) (citing Strassburger v. Earley, 752 A.2d 557, 579
(Del. Ch. 2000)).
84
Farny v. Bestfield Builders, Inc., 391 A.2d 212, at 214 (Del. Super. 1978).
85
Brandywine 100 Corp. v. New Castle County, 527 A.2d 1241 (Del. Super. 1987); Universal Enter. Grp., L.P. v.
Duncan Petroleum Corp., 2013 WL 3353743, at *20 (Del. Ch. July 1, 2013).
86
Restatement (First) of Contracts § 346 (1932).
87
See Joseph T. Dashiell Builders v. Andrews, 2002 WL 31819895 (Del. Super. 2002).
88
Christiana Marine Service Corp. v. Texaco Fuel and Marine Marketing, Inc., 2002 WL 1335360, at *22 (Del.
Super. 2002).
Version 2021address the injury alleged[;]” however, where a defendant breaches an obligation
independent of the duties imposed by contract, both claims might co-exist.89 The principle
behind the doctrine is that contract law provides a more comprehensive remedy than tort
law.90 Delaware courts have adopted an exception to the Economic Loss Doctrine as set
forth in the Restatement (Second) of Torts § 552, which provides a basis for recovery for
economic losses against those supplying false information.91 In order to successfully meet the
exception in a negligent misrepresentation claim, a plaintiff must show that (1) defendant
supplied the information to the plaintiff for use in business transactions with third parties,
and (2) the defendant is in the business of supplying information.”92 Delaware courts have
allowed purely economic tort claims to extend to suppliers of information.93
Residential homes
6 Del. C. §3652 provides that no action based in tort to recover damages from negligence
in the construction of residential real property shall be barred solely on the ground that
the only losses suffered are economic in nature. Thus, the economic loss doctrine does
not apply to residential homes.
6 Del. C. §3652 applies in actions between a general contractor and subcontractor.94
E. Interest
A prevailing party in a contract action is entitled to pre– and post-judgment interest.95
Prejudgment interest is awarded as a matter of right.96 As a general rule, pre-judgment
interest is computed from the date payment is due under the contract.97 The legal rate of
interest is defined as not greater than 5% over the Federal Reserve Discount Rate.98
89
Khushaim v. Tullow Inc., 2016 WL 3594752, at *4 (Del. Super. June 27, 2016).
90
Id.
91
See Guardian Construction Co. v. Tetra Tech Richardson, 583 A.2d 1378, 1385-1386 (Del. Super 1990).
92
See Christiana Marine Services Corp., 2002 WL 1335360, at *6, citing Danforth v. Acorn Structures, Inc., 1991
WL 269956 (Del. Super.).
93
As to design engineers (See Guardian, 583 A.2d at 1385), as to accountants (see Carello v.
PricewaterhouseCoopers, LLP, 2002 WL 1454111, at *7 (Del. Super. 2002), as to financial advisors, Outdoor
Technologies Inc. v. AllFirst Financial Inc., 2000 WL 141275, at *5 (Del. Super.), as to title searchers (see Ruger v.
Funk, 1996 WL 110072, at *10 (Del. Super.). But cf. Millsboro Fire Co. v. Construction Management Services, Inc.,
2006 WL 1867705, (Del. Super. 2006) (refusing to apply an exception to a subcontractor, finding that plans and
design drawings provided by a subcontractor did not place them in the “business of supplying information”).
94
Casale Constr., LLC v. Best Stucco LLC, 2014 WL 1316150, at *3 (Del. Super. Mar. 28, 2014).
95
But see Reserves Development LLC v. Severn Sav. Bank, FSB, 961 A.2d 521, 525 (Del. 2008) (denying
Appellant’s argument that it was entitled to pre-judgment interest as a matter of right and denying request for
prejudgment interest as untimely in a quasi-contract claim for unjust enrichment; affirming the Chancery Court’s
decision to deny pre-judgment interest, where Appellant requested interest in its Amended Complaint, but did not
specifically request pre-judgment interest until including it in a proposed form of Order).
96
Citadel Holding Corp. v. Roven, 603 A.2d 818, 826 (Del. 1982); but see Reserves Development LLC v. Severn
Sav. Bank, FSB, supra, at n. 57.
97
Moskowitz v. Mayor & Council of Wilmington, 391 A.2d 209, 210 (Del. 1978); Stonewall Ins. Co. v. E.I. du Pont
de Nemours & Co., 996 A.2d 1254, 1262 (Del. 2010) (For insurance claims, interest accumulates from the date a
party actually demands payment. A party is generally deemed to have demanded payment on the date a complaint is
filed.).
98
6 Del. C. §2301(a).
Version 2021F. Punitive damages
Punitive damages generally are not recoverable in a breach of contract action.99 However, the
Delaware Supreme Court has stated that punitive damages are recoverable where “the
defendant’s conduct exhibits a wanton or willful disregard for the rights of [the] plaintiff.”100
A finding of “ill-will, hatred or intent to cause injury” is required in order to support a claim
for punitive damages in a contract action.101
G. Emotional distress
Under Delaware law, if a person intentionally, recklessly, or negligently causes severe
emotional distress to another by extreme and outrageous conduct, that person is liable for the
emotional distress and for any bodily harm that results from the distress.
According to the Delaware Pattern Jury Instructions:
Extreme and outrageous conduct goes beyond all possible bounds of decency and would be
regarded as atrocious and utterly intolerable in a civilized community. Emotional distress
includes all highly unpleasant mental reactions, including fright, horror, grief, shame,
humiliation, embarrassment, anger, chagrin, disappointment, and worry. Severe emotional
distress is so extreme that no reasonable person could be expected to endure it.102
H. Duty to mitigate damages
The general rule for the measure of damages is the loss actually sustained as a result of the
breach of the contract.
The duty to mitigate requiring that the injured party make a reasonable effort, whether
successful or not, to minimize the losses suffered. If no reasonable effort was made, the
damages shall be reduced by the proper amount, had a reasonable effort been undertaken.
The reduction must be measured with reasonable probability.103
I. Waiver of jury trial
99
Horizon J.J. White, Inc. v. Metropolitan Merchandise Mart, 107 A.2d 892 (Del. Super. 1954).
100
Cloroben Chemical Corp. v. Comegys, 464 A.2d 887, 891 (Del. 1983) (citing Riegal v. Aastad, 272 A.2d 715,
718 (Del. 1970)), or “for willful or malicious breaches of contract.” Jardel Co., Inc. v. Hughes, 523 A.2d 518, 529
(Del. 1987); see also Casson v. Nationwide Insurance Co., 455 A.2d 361 (Del. Super. 1982) (citing McClain v.
Faraone, 369 A.2d 1090 (Del. Super. 1977)).
101
See Casson, 455 A.2d 361, 368; see also Enrique v. State Farm Mut. Auto. Ins. Co., 142 A.3d 506, 512 (Del.
2016) (finding that a bad-faith claim based on the insurer’s failure to settle an insurance claim or honor its
obligations sounds in contract and punitive damages are available “as a remedy for bad faith breach of the implied
covenant of good faith where the plaintiff can show malice or reckless indifference by the insurer”).
102
Del. P.J.I. Civ. § 14.1 (2000).
103
See Lynch v. Vickers Energy Corp., 429 A.2d 497, 504 (Del. 1981) (plaintiff with out-of-pocket expenses has
duty to mitigate them); McClain v. Faraone, 369 A.2d 1090, 1093 (Del. 1977)(duty to mitigate losses in liquidation
of property at foreclosure sale of injured party); Nash v. Hoopes, 332 A.2d 411, 414 (Del. 1975) (duty in contractual
breach to mitigate losses when reasonably possible); Katz v. Exclusive Auto Leasing, Inc., 282 A.2d 866, 868 (Del.
1971)(common law of contracts requires injured party to minimize losses); see also Restatement (Second) Of
Contracts § 350 (1979).
Version 2021Courts have approved of the waiver of a jury trial through inconspicuous language in a sales
agreement.104
CONTRACTOR’S REMEDIES
A. Mechanic’s Lien
The process and procedure for mechanic’s liens in Delaware is governed by statute.105 The
statute allows for “any person having performed or furnished labor or material … for the
erection, alteration, or repair of any structure, in pursuance of any contract … with the
owners … or with the agent of such owner … to obtain a lien upon such structure and upon
the ground upon which the same may be situated or erected.”106 “The general purpose of a
mechanic’s lien is to provide protection for contractors or other laborers who furnish labor or
other services on a structure pursuant to a contract with its owners.”107 Under the mechanic’s
lien statute, “labor” includes both physical and supervisory labor.108
Because the right to a mechanic’s lien derives solely from the statute, the rights and remedies
are in derogation of the common law, and the statute is strictly construed.109 “Strict
compliance with the statute is required as powerful relief is afforded that was unavailable at
common law.”110
Delaware courts have held that strict construction, however, “does not mean unreasonable or
unwarranted construction.”111 Delaware Courts have mandated that those individuals who
file mechanic’s liens be in “substantial compliance” with the statutory requirements.112
Delaware Courts have readily dismissed complaints for non-compliance with the statutory
requirements.113
104
Agostini v. Blenheim at Augustine Creek, LLC, 2019 WL 126876, at *3 (Del. Super. Ct. Jan. 7, 2019).
105
See 25 Del. C. § 2701 et. seq.
106
25 Del. C. § 2702(a).
107
Commonwealth Const. Co. v. Cornerstone Fellowship Baptist Church, Inc., 2006 WL 2567916, *16 (Del. Super.)
(citing J.G. Justis Co. v. Spicer, 95 A. 239 (Del. Super. 1915)).
108
See A.J. Bradbury v Adeleke, 2008 WL 5048427, at *3 (Del. Super.) (citing Construction Resource Management
v. Littleton, 2008 WL 4117186, at *3 (Del. Super.)).
109
Wyoming Concrete Industries, Inc. v. Hickory Commons, LLC II, 2007 WL 53805, at *2 (Del. Super.) (citing
Dep’t of Cmty. Affairs & Econ. Dev. V.M. Davis & Sons, Inc., 412 A.2d 939, 942 (Del. 1980)).
110
C&J Paving, Inc. v. Hickory Commons, LLC, 2006 WL 3898268, at*2 (Del. Super.) (citing J.O.B. Constr. Co. v.
Jennings & Churella Servs., Inc., 2001 WL 985106, at *2 (Del. Super.)); see King Construction , Inc. v. Plaza Four
Realty, LLC, 2008 WL 4382798 (Del. Super.), aff’d 976 A.2d 145 (Del. 2009) (citing E.J. Hollingsworth Co. v.
Continental-Diamond Fiber Co., 175 A.2d 266, 268 (Del. 1934)) (There is no right to a mechanic’s lien unless the
statement of claim complies all of the applicable statutory requirements.).
111
Rockland Builders, Inc. v. Endowment Management, LLC, 2006 WL 2053418, *3 (Del. Super.) (quoting Ceritano
Brickwork, Inc. v. Kirkwood Indus., Inc., 276 A.2d 267, 268 (Del. 1971)).
112
See Ewing v. Bice, 2001 WL 880120, at *2 (Del. Super.) (citing 25 Del. C. § 2712; Silverside Home Mart, Inc. v.
Hall, 345 A.2d 427, 429-30 (Del. Super. 1975)); Lakewood Builders, Inc. v. Vitelli, 1987 WL 10533, at *2 (Del.
Super.).
113
See Wyoming Concrete Industries, Inc.; C&J Paving, Inc., supra.
Version 2021In personam claims, such as breach of contract, can be filed concurrently with a mechanic’s
lien claim.114
1. Pre-Lien Notice
There is no statutory requirement to provide notice prior to initiating an action under the
mechanic’s lien statute. Initiating an action is accomplished through a writ of scire
facias.115
2. Mechanic’s Lien Statement
The statute defines “structure” to “include[] a building or house.”116 Mechanic’s liens
may also be obtained by those furnishing labor or materials for the construction of or
improvements to mills, factories, bridges, wharves, piers, and docks.117 In the absence of
a contract between the contractor and landowner which has been signed by the
landowner, as well as meeting other enumerated requirements as contained in the statute,
a lien may not attach to improvements which are made solely to the land alone, that is,
those not made for the benefit of or improvement to any structure thereon.118
Complaints or statements of claims for mechanic’s liens must be filed in the county
where the structure is situated, and must include certain information as enumerated in the
mechanic’s lien statute.119 Delaware’s mechanic’s lien statute, at 25 Del. C. § 2712, sets
forth “requirements of complaint and/or statement of claim.”120 This section, however, is
114
See Commonwealth Const. Co. v. Cornerstone Fellowship Baptist Church, Inc., 2006 WL 2567916, at *22 (Del.
Super.) (citing Neukranz v. Delaware Lumber & Millwork, Inc., 1998 WL 442847 (Del. Super.)) (citing amendment
to 12 Del. C. § 2712).
115
Ewing v. Bice, 2001 WL 880120, at *4 (Del. Super. July 25, 2001); see also Del. Super. Ct. Civ. R. 4 (“Not later
than ten (10) days following the filing of an action begun by scire facias, the plaintiff, or his counsel of record, shall
send by certified mail, postage prepaid, return receipt requested, to holders of liens on the real estate which is the
subject of such action who have acquired such liens at the time the action is filed and to tenants holding or
possessing a leasehold estate for years or at will in such real estate…”).
116
25 Del. C. § 2701(3).
117
25 Del. C. § 2702(b).
118
See 25 Del. C. § 2703; see also Whittington v. Segal, 193 A.2d 534 (Del. Super. 1963) (holding that provisions
contained in a lease did not comport with the statutory requirement of a contract signed by the owner for the work
performed); see also C&J Paving, 2006 WL 3898268, *2 (Del. Super.) (dismissing mechanic’s lien action for
paving work that was not appurtenant to or did not service any structure on the land, where plaintiff failed to allege
any specific structure benefited by the materials delivered or the work performed); Cf. Jones v. Julian, 195 A.2d
388, 390 (Del. 1963) (finding that mechanic’s lien law applied to paving work done by subcontractor around a motel
then under construction because the paving was a “component part of [the] motel,” rather than an improvement to
land alone (not requiring the pleading of a written contract signed by the owner)).
119
See 25 Del. C. § 2712(b) (The complaint and/or statement of claim shall set forth: the name of the plaintiff, the
name of the owner of the structure, the name of the contractor and whether the contract was made with the
contractor, the amount claimed to be due to the contractor, the time work on the structure commenced and ended,
the location of the structure, that labor or materials for the structure were provided on credit, the amount of
plaintiff’s claim, the amount due on each structure, and the time of recording a first mortgage); see also
Commonwealth Const. Co. v. Cornerstone Fellowship Baptist Church, Inc., 2006 WL 2567916, at *16 (Del. Super.).
120
See 25 Del. C. § 2712.
Version 2021not an exhaustive list of all necessary pleading requirements for mechanics’ lien
claims.121
If claims for liens are made against multiple structures, the claimant must designate in the
complaint the amount which is claimed due on each structure.122
Contractors who have contracted directly with the owner of a structure must file a
statement of claim within 180 days after the completion of the structure.123 A claim made
under the mechanic’s lien statute is deemed timely if it is filed within 180 days of any of
nine (9) enumerated events in the construction process.124 Those not having a contract
directly with the owner have 120 days from the date labor or delivery of materials was
completed, or from the date final payments were due or made to the contractor, to file a
statement of claim.125 Including a finishing date in a Statement of Claim is “‘essential ...
for the creation of any mechanics’ lien’ in part because it is necessary to determine the
running of the statute of limitations.”126
3. Foreclosure
If the contractor obtains a judgment upon a claim made under the statute, a lien will
attach to the structure at issue and the grounds upon which it sits.127 A claimant is
required to proceed by writ of levari facias in order to execute on a judgment obtained
under the mechanic’s lien statute.128
4. Sale
A judgment lienholder may file a writ of scire facias commanding a sheriff’s sale of the
property in order to recover his lien interest.129 The statute does not provide for the
priority or preference of claims. If the proceeds of the sale are insufficient to satisfy all
outstanding liens obtained pursuant to the statute, the proceeds are divided on a pro rata
basis between those claimants proceeding under the statute.130
5. Prompt Payment Act
121
See, e.g., King Construction, Inc. v. Plaza Four Realty, LLC, 2008 WL 4382798 (Del. Super.), aff’d 976 A.2d
145 (Del. 2009), citing 25 Del. C. § 2712 (dismissing mechanic’s claim for failure to plead lessor’s written consent
for work performed for its tenant) (“Although not explicitly referenced in the pleading requirements of § 2712, the
statutory requirement of prior written consent has long been construed by Delaware courts to impose a pleading
requirement upon that ‘special class of mechanics’ liens for labors or supplies contracted for by the tenant.’”).
122
See 25 Del. C. § 2713.
123
See 25 Del. C. § 2711(a)(1).
124
See 25 Del. C. § 2711(a) (2) (a-i).
125
See 25 Del. C. § 2711(b).
126
King Const., Inc. v. Plaza Four Realty, LLC, 2008 WL 4382798 *3 (Del. Super.), aff’d 976 A.2d 145 (Del.
2009), (citing Poole v. Oak Lane Manor, Inc., 118 A.2d 925, 926 (Del. Super. 1955)), aff’d 124 A.2d 925 (Del.
1956).
127
25 Del. C. § 2718.
128
25 Del. C. § 2719.
129
25 Del. C. §§2714, 2715.
130
25 Del. C. §2720.
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