In a previous post dated October 7, 2021, we noted that “[u]nlike Uber and Lyft, food delivery companies such as DoorDash, Grubhub, and Uber Eats, are not considered ‘transportation network companies’ and therefore are not subject to the Transportation Network Company Safety and Regulatory Act, nor its requirements of insurance minimums.” See our post: “What happens if you get in a car accident involving Uber, Lyft, DoorDash, Grubhub, or Uber Eats.” We further stated that “as New Jersey law requires personal injury protection (PIP) and uninsured motorist (UM) coverage, Uber Eats will provide this insurance.” Ibid. However, an unresolved question remained as to underinsured motorist (UIM) benefits. The Appellate Division has since resolved that question.
The issue before the court was whether N.J.S.A. 39:5H-10 requires meal delivery services, such as Uber Eats, Grubhub, or DoorDash, to provide $1.5 million in underinsured motorist coverage as mandated by the statute for “transportation network companies.” On September 27, 2022, the panel noted that while “pending legislation that, if enacted, would do just that…” the present landscape provides certainty that the Transportation Network Company Safety and Regulatory Act “in its present form does not apply to the circumstances of this case.” Malzberg v. Josey, A-2883-20.
On August 17, 2017, Scott C. Malzberg was using his personal vehicle, a motorcycle, to deliver food for Uber Eats. Id. at *4. While he was making a left turn onto Route 17, a vehicle operated by Caren L. Josey struck Malzberg’s bike, throwing him to the ground. Ibid. As a result of the collision, Malzberg sustained significant injuries. Ibid.
Josey’s vehicle was insured with CURE Auto Insurance and carried bodily injury liability coverage of $15,000 per person and $30,000 per accident. Ibid. Malzberg’s injuries quickly exhausted the same. Ibid. As a result, Malzberg turned to Uber Eats for underinsured motorist coverage (UIM). Ibid.
Malzberg had enrolled with Portier, LLC, a subsidiary of Uber that generates leads to independent food delivery service providers through the mobile phone app known as Uber Eats. Id. at *3. Portier’s business auto policy was with James River Insurance Co. Id. at *4. Under this policy, Portier provided insurance to delivery drivers under contract with Uber Eats but did not provide underinsured motorist coverage (UIM). Id. at *3. Therefore, the plaintiff filed suit, arguing that the defendant was obligated to provide UIM coverage. Id. at *5. The defendant in turn, filed a Motion for Summary Judgment, arguing that the Transportation Network Company Safety and Regulatory Act (TNCSRA) did not compel it to provide UIM coverage. Id. at *6. Essex County Superior Court Judge Stephen L. Petrillo granted the Motion concluding that TNCSRA applied only to “transportation network companies.” Ibid.
On appeal, the plaintiff argued that the TNCSRA obligated the defendant to provide $1.5 million in UIM coverage. Ibid. The defendant, on the other hand, argued that the TNCSRA did not apply to food delivery services such as Uber Eats. Ibid. The Appellate Division agreed and affirmed the grant of summary judgment. Id. at *2.
The panel first set forth the relevant definitions of N.J.S.A. 39:5H-2, finding “[m]ost notably, nothing in the definition section—or any other section of the Act for that matter—refers to the delivery of food.” Id. at *12. As a result of this absence, the court found “that the Legislature in enacting the TNCSRA was concerned only with vehicles while they are being used to transport persons.” Id. at *14.
Nevertheless, the plaintiff argued that transporting food was covered under the Act because “[t]he definition of transportation network driver is a person who receives connections to potential riders and related services from a transportation network.” Id. at *17 (emphasis in original). However, the court rejected the plaintiff’s broad interpretation of the TNCSRA’s reference to “related services” as including food delivery services within the meaning, as it would significantly expand the scope of the statutory scheme and was inconsistent with other portions of the statute. Ibid. Instead, the court found that “related services” were intended to include additional services connected with passenger transport, such as loading and unloading a passenger’s luggage or transporting their pet or service animal. Id. at *18.
Finally, the court acknowledged the economic repercussions for the plaintiff, stating: “[a]lthough we appreciate the economic consequences of plaintiff’s situation, his contention that there is a ‘hole’ in the law raises policy considerations that simply are beyond our purview.” Id. at *25. Thus, the court concluded by affirming the trial court and stating that “[a]ll we can say for certain is that the TNCSRA in its present form does not apply to the circumstances of this case.” Id. at *26.
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