Jeffrey P. Gale, P.A. // Gap in Protection for Florida Uber Eats Bicycle Riders

We represent a hardworking young college student who was struck by a hit-and-run vehicle and left for dead by the side of the road while delivering for Uber Eats on his bicycle. He spent a week in Ryder Trauma Center, a leading catastrophic care facility, with life threatening injuries ranging from traumatic brain injury (TBI) to bone fractures.

Florida Statute 627.748 imposes obligations on Transportation Network Companies (TNC) to maintain primary automobile insurance coverage while an authorized driver is engaged in service operations. The types of required coverage are death and bodily injury (BI), property damage (comprehensive and collision), uninsured/underinsured motorist (UM/UIM), and personal injury protection (PIP), with varying policy limits depending on whether the participating TNC driver is engaged in a prearranged ride or logged on to the digital network but not engaged in a prearranged ride.

Unfortunately, the statute leaves a gaping hole for victims like our young college student. By its terms, the statute is limited to situations where the TNC driver is engaged in a prearranged ride (with or for a “rider”) or is logged on to the network while operating a motor vehicle. Since a bicycle is not a motor vehicle and food is not a “rider” — defined in 627.748 as “an individual who uses a digital network … to obtain a prearranged ride in the TNC driver’s vehicle….” — our young client may never be compensated for his damages (injuries, medical expenses, lost wages).

We are prepared to fight to find out. We are seeking compensation from two sources:

UNINSURED MOTORIST (UM) COVERAGE: Since the identity of the at-fault driver/vehicle is unknown, Florida law considers this an uninsured motorist situation. This is what UM insurance is supposed to cover. (UIM is for when the at-fault party has liability insurance, but the policy limits are not high enough to cover the full loss.) While Florida Statute 627.748 appears to leave our client empty handed, we intend to carefully read the insurance policy purchased by Uber for its drivers — until March 1, 2019, Uber Eats coverage was through James River Insurance Company. Since then, coverage is with Progressive Insurance Company — to determine if this loss is covered. It’s unlikely.

FLORIDA WORKERS’ COMPENSATION: Independent contractors are excluded from coverage under Florida’s workers’ compensation system. Uber and other TNC companies have been successful nationwide in convincing the courts that its drivers are independent contractors. The leading Florida case on the subject is McGillis v. Department of Economic Opportunity, 210 So.3d 220 (Fla. 3rd DCA 2017). While not a workers’ compensation case, the court nevertheless declared that Uber drivers are independent contractors. Section (9) of Florida Statute 627.748 addresses the issue similarly.

Our case, involving a bicycle and food, does not fit within the independent contractor holdings derived from cases associated with motor vehicles and riders. Thanks to Florida Statute 627.748, Uber motor vehicle operators are not without a remedy even though considered independent contractors. Absent success in securing UM, an unlikely and partial remedy at best, our young client will be without a remedy altogether if in the workers’ compensation case he is declared an independent contractor.

This would be an unjust result. We will make every effort to prevent it from happening.

The absence of coverage under 627.748 also means that persons harmed by a TNC bicyclist’s negligence — e.g., the bicyclist blows through an intersection, causing drivers to swerve and crash — are not covered by liability insurance. Only those with applicable UM insurance would be eligible for the equivalent of liability insurance, subject, of course, to policy limits.

There is no good reason why TNCs should be allowed to reap profits without shouldering some responsibility.