Wilmington
For nearly 20 years, Marshall Dennehey has had a presence in Wilmington, Delaware, proudly serving clients throughout the state in all manner of civil defense litigation.
Our Wilmington attorneys regularly defend businesses, insureds, municipalities and professionals in general casualty, employment and labor, health care and health law, product liability, property litigation, professional liability, workers' compensation, and white-collar criminal matters. Our attorneys are active in local Inns of Court and are members of regional defense groups, including the Defense Research Institute, Trial Attorneys of America, Defense Counsel of Delaware and the Delaware Claims Association.
In addition to Delaware litigation, a number of the office's attorneys are admitted to practice in Maryland and routinely handle matters in the state and federal courts of that state as well.
Like all of the firm's regional offices, the Wilmington office combines the advantages of the personal attention of a small law firm with the advantages that come from the intellectual property and broad-based experience of a large firm.
Thought Leadership
What's Hot in Workers' Comp
Mitigating Long-Tail Liability: Delaware Court Reaffirms Five-Year Workers’ Compensation Deadline
July 16, 2026
Williamson v. Donald F. Deaven, Inc., No. N25A-07-004 FWW, 2026 LX 252526 (Del. Super. Ct. June 2, 2026) Claimant was involved in a compensable industrial work accident on May 12, 1995, for a low back injury. Following this, he received compensation for temporary total disability benefits from July 1996 to September 1996 and for sustaining a permanent impairment in 1997 and 1998. For the next 23 years, the claimant continued treatment and paid his own medical bills without submitting them to the employer’s insurer. In November 2021, the claimant filed a petition seeking payment for medical expenses, including prospective surgery and a resulting period of total disability. The employer moved to dismiss the petition, arguing it was barred by Delaware’s five-year statute of limitations (19 Del. C. § 2361(b)). Pursuant to 18 Del. C. § 3914, insurers must provide prompt written notice of the applicable statute of limitations to invoke the five-year deadline. Due to the age of the case, neither party had a comprehensive file of the claim and the Board had archived its file of the matter. The carrier’s computer system retained only bare information indicating that payments occurred and agreements and receipts were filed with the Board in 1997. While the claimant argued that the employer could not prove it provided the mandatory statutory notice, the Hearing Officer recovered the archived file, which contained two “Receipts for Compensation Paid” signed by the claimant. The receipts explicitly contained the required five-year limitation language, which the claimant testified to signing at the hearing. The claimant also attempted to introduce evidence of payments he claimed the employer made, which would have extended the statute of limitations. As a preliminary matter, the hearing officer excluded the testimony about the payments because the claimant did not produce them to the employer. The Board found in favor of the employer and dismissed the claimant’s petition as time-barred. The claimant appealed the Board’s decision, arguing that he never received adequate notice of the statute of limitations and that the hearing officer’s evidentiary ruling was an abuse of discretion. The Court held that the archived, signed receipts constituted substantial evidence that the insurer fulfilled its statutory notice requirements. Therefore, the claimant’s petition was time-barred under the statute of limitations provisions of 19 Del. C. § 2361(b). Furthermore, the Court reinforced strict procedural compliance: it rejected the claimant’s attempts to introduce evidence of payment on appeal, ruling the argument was waived for failure to preserve it while the matter was still before the Board. This recent ruling by the Court underscores the importance and necessity of robust data preservation and precise compliance with notice requirements. For risk managers, employers, and insurers, the decision highlights how tight administrative execution protects against catastrophic long-tail liability.
What's Hot in Workers' Comp
Another Case of Superior Court Weighing the Facts Rather than Simply Examining the Record to Determine if Substantial Evidence Exists to Support the Board’s Factual Findings and Conclusions?
June 8, 2026
In the May 2026 edition of What’s Hot, I highlighted a Delaware Supreme Court decision, Red House Motors v. Bayly, that reversed a Superior Court decision because the Superior Court is not free to make its own factual findings contrary to those of the board when there is substantial evidence to support the board’s conclusions. In Franceschi-Rodriguez v. Perdue Foods, LLC, C.A. No. S25A-09-001 RHR (Del. Super. May 22, 2026), the court reversed the board’s decision, terminating claimant’s temporary total disability benefits. The board terminated the claimant’s total disability benefits after determining that Franceschi was not prima facie a displaced worker. In reversing the board, the Franceschi court stated that the board’s decision that claimant was not prima facie a displaced worker was not supported by substantial evidence. Under Delaware law, once the board determines that a claimant is no longer totally medically disabled, the claimant can show continued entitlement to “economic” total disability benefits by showing prima facie displacement. In Franceschi, it was undisputed that the claimant was no longer totally medically disabled because he could perform sedentary work. In considering whether Franceschi was prima facie displaced and thus possibly entitled to ongoing “economic” total disability benefits, the board found that the claimant was a 58-year old male, had a four-year degree achieved in Puerto Rico in Spanish, had a ten-year work history in law enforcement in Puerto Rico, and was unable to communicate in English. It also found that, since being in the United States, he only performed construction or work for Perdue. After weighing the evidence before it, the board determined that the claimant was not prima facie displaced. On appeal, the Superior Court reversed the board’s decision that the claimant was not prima facie a displaced worker. In so doing, the court appeared to weigh the facts differently than was done by the board. It held that the board’s decision was not supported by substantial evidence. The Superior Court’s opinion largely emphasized the claimant’s language barrier and how his inability to speak, read, or write in English, combined with his inability to transfer his degree to Delaware without acquiring a local certification, rendered the claimant “effectively uneducated.” This finding by the Superior Court is contrary to the board’s weighing of the evidence presented during the hearing regarding the claimant’s mental capacity, education, and training that led the board to believe that the claimant “exhibited a host of skills beyond basic labor.” Given the foregoing, it appears that Franceschi may be another instance of the court substituting its factual findings for those of the board, instead of simply determining whether substantial evidence exists to support the board’s findings of fact and conclusions of law.
Results
Defense Jury Verdict Obtained Before the Delaware Superior Court
We received a defense jury verdict before the Delaware Superior Court, New Castle County. Although liability was undisputed at trial, damages were disputed. The plaintiff sought damages for head, neck, back and left shoulder injuries. He had $350,000 in future medical bills and $78,000 in past medical bills that he could board. The plaintiff also had a $5 million lost wage claim that we were able to get dismissed prior to trial on a motion in limine.
Petition to Terminate Ongoing Receipt of TPD Benefits Granted on Basis that Claimant Voluntarily Removed Himself from the Workforce
The Industrial Accident Board (IAB) granted our petition to terminate the ongoing receipt of temporary partial disability (TPD) benefits on the basis that the claimant had voluntarily removed himself from the workforce. The claimant was a correction officer who suffered head injuries in an altercation with an inmate. He was out of work for a time and eventually released to return to work on modified duty. His restrictions were permanent and, because they could not be accommodated by his employer, he was placed on TPD. After more than a year with no indication of an attempt to return to the workforce, we challenged his ongoing entitlement to receive TPD. We worked with the employer to obtain documentation regarding the claimant’s job search (or lack thereof), other sources of income (pension, Social Security) and recreational/social activities since he had been separated from employment. In addition, we put forward both medical and vocational expert testimony at the hearing. As a result, the IAB reasoned that the claimant was able to work in a medium-duty job, that jobs were available within his restrictions, the he had conducted a minimal job search since his work release more than a year and a half earlier, and that his description of his daily activities was consistent with a person content with a retirement lifestyle rather than someone who intended to continue to work. Accordingly, he was no longer entitled to wage replacement benefits.
