Jeffrey P. Gale, P.A. // Florida Uber Driver Declared Independent Contractor

Uber-300x145In a case with far-reaching implications, Florida’s Third District Court of Appeal ruled on February 1, 2017 that an Uber driver was not an employee of Uber. In McGillis v. Department of Economic Opportunity, the court decided that, based on the contract between the driver and Uber and the nature of their relationship, the driver was an independent contractor for the purpose of reemployment assistance under Chapter 443 Florida Statutes (2015).

While the case involves a relatively minor claim for unemployment compensation, the court’s ruling, with its in-depth analysis of Florida’s independent contractor law, will have consequences in other types of Florida cases.

In civilized society a person injured through the negligence of another party should have the right to be compensated for their losses by that party. However, what is good in theory (i.e., the right to pursue a recovery) does not always pan out in reality. Frequently, the at-fault party is not adequately insured, if insured at all, or does not have the personal means to cover the losses. It is the personal injury lawyer’s job to make every effort to find sources of payment.

Bodily Injury (BI) is a type of coverage available under some motor vehicle insurance policies to compensate injured parties for losses sustained in a crash. However, because it is not mandatory in Florida, a large percentage of motorists do not maintain the coverage because of the added premium cost. Even when the coverage is available, the amount available is limited by the terms of coverage under the policy. The minimum BI policy limit in Florida is $10,000 per person/$20,000 per accident. For catastrophic injuries, this is nothing. It is also the most common coverage limit chosen by motorists when BI is selected. (The BI limits under a policy can be as high as what the policy holder is willing to pay for, even in the millions of dollars.)

Because Uber does not own the vehicles operated by its drivers, it cannot be held liable for damages under Florida’s dangerous instrumentality doctrine. The McGillis decision did not change this situation. However, it did impact the ability of an injured person to seek compensation from Uber under Respondeat Superior, a legal doctrine most commonly used in tort, that holds an employer or principal legally responsible for the wrongful acts of an employee or agent, if such acts occur within the scope of the employment or agency. See, Valeo v. East Coast Furniture Co., So.3d , 37 FLW D1820 (Fla. 4th DCA 8-1-2012) (An employer can be vicariously liable for the act of an employee committed (1) within the scope of employment, or (2) during the course of employment and to further a purpose or interest of the employer.) By declaring the Uber driver to be an independent contractor rather than an employee, McGillis appears to have taken this avenue of recovery against Uber (and other technology driven transportation companies — assuming similar contracts and relationships as in the McGillis case) off the table.

We do not know if Uber requires its drivers to maintain BI coverage. However, even if it does, any required minimum coverage limits are unlikely to exceed $50,000/$100,000, amounts wholly inadequate to compensate fully for serious injuries. If Uber could be held liable for damages through Respondeat Superior, adequate compensation would not be a concern. Uber would be sure to maintain BI limits in amounts sufficient to cover any loss.

While McGillis cuts off an important avenue of relief, other remedies remain, including:

  • Negligent hiring/Negligent retention. While this principle is most often applied in the setting of the employer/employee relationship, it might be extended to hold Uber, et al accountable. An employer is liable where it negligently hires and/or retains an employee. This concept has a long history in Florida jurisprudence, extending back to at least 1954. See Mallory v. O’Neil, 69 So.2d 313 (Fla. 1954) (complaint alleged agent and caretaker of apartments, known to have prior record of charge and trial for assault to commit murder, but nevertheless kept on premises by owner, secured a gun and shot a tenant). The Florida Supreme Court explained that the concept “is grounded on negligence of the defendant in knowingly keeping a dangerous servant on the premises which defendant knew or should have known was dangerous and incompetent and liable to do harm to the tenants.” (Tallahassee Furniture Co., Inc. v. Harrison, 583 So. 2d 744 (Fla. 1st DCA 1991) is a case of more recent vintage that is frequently cited for the concept.)
  • At-fault driver’s motor vehicle insurance. Discussed above.
  • Uninsured/Underinsured (UM/UIM). Even if the at-fault driver is uninsured or underinsured (which means that the damages exceed the coverage limits), injured persons may have available to them UM/UIM insurance. Here, again, this type of coverage is not mandatory in Florida, so most drivers don’t carry it.

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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