The below article of mine was published in the July 2, 2019 edition of the Pennsylvania Law Weekly and is republished here with permission:
Quandary on Whether Limited Tort or Full Tort Applies to Uber Drivers
By Daniel E. Cummins | June 27, 2019
Pennsylvania Law Weekly
As the use of Uber and Lyft rideshares become more
prevalent in Pennsylvania, it is more likely that motor vehicle accidents
involving such drivers will increase and thereby give rise to novel issues of
law.
One such issue is whether an Uber or Lyft driver who
has elected the limited tort option under his own personal automobile insurance
policy will be deemed to be a full tort plaintiff if he is involved in an
accident while driving as an Uber or Lyft driver. The quandary in this regard
is whether the Uber or Lyft driver’s use of his own personal vehicle for
business purposes triggers an exception to the limited tort option.
Limited Tort
Under the tort option statute found at 75 Pa.C.S.A.
Section 1705, carriers are required to secure from their customers a written
election of either full tort coverage or limited tort coverage whenever a
personal automobile insurance policy is sold.
Full tort coverage, sold at a higher premium, allows
an insured to pursue a claim for noneconomic damages, otherwise known as pain
and suffering damages, without regard for the types of injury sustained by the
plaintiff.
On the other hand, with limited tort coverage, an
insured will pay a lower premium but, in exchange, agrees that he cannot
recover pain and suffering damages unless and until the injured insured shows
that he has sustained a serious injury as a result of the accident. A serious
injury in this context is a injury that results in a substantial impairment of
a body function, serious permanent disfigurement or death.
The grey area for Uber and Lyft drivers is this—where
person has chosen the limited tort alternative, there is an exception to the
rule where that driver is operating a commercial vehicle as opposed to a
“private passenger vehicle.” The question as to whether the use of a personal
vehicle as an Uber or Lyft vehicle changes that private vehicle into a
commercial vehicle has not been answered by the statutory law or the courts of
Pennsylvania to date.
Status of Uber or Lyft Drivers
The legal issue of the tort option coverage applicable
to Uber and Lyft drivers is complicated by the fact that such drivers use their
personal vehicles in different capacities at different times. The lingo in the
field is that Uber and Lyft drivers have different periods, or types, of
driving statuses.
Period 1 is considered to be when the driver is
driving their vehicle only in a personal capacity and without regard to the
fact that they, at other times, are “on the app” and looking for fares to pick
up as Uber or Lyft drivers.
Period 2 is when an Uber or Lyft driver is “on the
app” and ready and willing to pick up a fare to drive somewhere but has not yet
been summoned and when the driver has been summoned and is on the way to pick
up the fare.
Period 3 is considered to be when the Uber or Lyft has
a customer in the car as a passenger.
Statutes on Uber/Lyft Insurance
The statutory law pertaining to the mandatory
requirements for insurance coverages for Uber and Lyft drivers can be found at
both 66 Pa.C.S.A. Section 2601, et al., and 53 Pa.C.S.A. Section 57A01, et al.,
and is titled “Transportation Network Companies.”
The new law defines what a transportation network
company is and identifies the relevant driver(s) included under the ambit of
the statute. This new law also outlines a list of qualifications and standards
that the company must meet before being permitted to operate in the
commonwealth of Pennsylvania.
In addition, the law provides for the mandated
minimums for liability insurance coverages and first-party benefits coverages
depending on which scenario applies.
These scenarios include where the driver of the
vehicle does not have passengers and is logged into the transportation network
company network (presumably applying to the situation where the driver is on
the way to pick up a fare), and where the driver of the vehicle does have
passengers.
It is suggested that automobile accident litigators
should review these statutes to become aware of these mandatory minimum
liability coverages and first-party insurance coverages. These coverages were
reviewed in a Nov. 16, 2017, Pennsylvania Law Weekly article titled “New Law:
Mandated Coverages for Uber and Lyft Vehicles” by Daniel E. Cummins and Stephen
T. Kopko.
According to Uber’s website, companies that are
issuing these types of insurance policies include, at a minimum, James River
Insurance Co., Progressive, Allstate and Farmers Insurance.
What the new law does not cover is the limited tort
vs. full tort question for the separate insurance policies that are issued
specifically for Uber and Lyft drivers over and above the personal automobile
insurance such drivers may already have on their vehicles.
As such, there may be certain Uber and Lyft drivers
who have elected the limited tort option under their personal automobile
insurance policy and who have additional insurance Uber or Lyft-type policies
for their commercial or business use of their vehicle that are silent on the
tort option question.
A Requirement of Statutory Construction
Given that there is no statutory law or case law on
point to answer the question presented, it appears that, if faced with the
issue of whether an Uber or Lyft driver who has elected the limited tort option
should nevertheless be considered a full tort plaintiff, the courts will have
to engage in a construction of the statutes in place as compared to the
insurance policies in question.
To the extent that a review of this question of law
requires the court to interpret Pennsylvania’s Motor Vehicle Financial
Responsibility Law, the courts can be guided by the Statutory Construction Act,
1 Pa.C.S. Sections 1501-1991.
Pursuant to the Statutory Construction Act, the object
of all statutory construction is to ascertain and effectuate the General
Assembly’s intention. When the words of a statute are clear and free from
ambiguity, the letter of the statute is not to be disregarded under the pretext
of pursuing its spirit.
Turning to the applicable statutes, under 75 Pa.C.S.A.
Section 1705(d)(3), it is provided that “an individual otherwise bound by the
limited tort election shall retain full tort rights if injured while an
occupant of a motor vehicle other than a private passenger motor vehicle.”
Under 75 Pa.C.S.A. Section 1702, a ‘private passenger
motor vehicle’ is defined as a “four-wheel motor vehicle, except recreational
vehicles not intended for highway use, which is insured by a natural person and
… is a passenger car neither used as a public or livery conveyance nor rented
to others …”
Under these statutory provisions, it is likely that a
court would rule that a car or truck used by an Uber or Lyft driver is
obviously a “four-wheel motor vehicle” that is “insured by a natural person” by
virtue of the driver’s personal automobile insurance coverage. See 75 Pa.C.S.A.
Section 1702.
However, according to the same statutory language, the
vehicle would fall out of the scope of the definition of a private passenger
vehicle whenever that vehicle is “used as a public or livery conveyance.” A
livery is otherwise known as a vehicle for hire.
Therefore, it would appear that, if faced with the
issue, the courts could find that, although an Uber or Lyft driver had selected
the limited tort option under their own personal policy, such a driver would
nevertheless be deemed to be a full tort plaintiff if involved in an accident
while the driver had a passenger in the car as a paying fare on a particular
trip.
However, a wrinkle in this regard is that it could
also be argued that, once the car is being used as a livery or a hired car,
then that vehicle would fall within a business use exception under the personal
automobile insurance policy such that that personal policy would not be
applicable to the accident.
This would leave the plaintiff with only the Uber or
Lyft liability policy in place under which no tort option election is
apparently required. Such a plaintiff driver may then arguably have no tort
option election in place and may, as a result, be found to be covered by the
full tort option.
It also appears that, if a limited tort Uber or Lyft
driver, was not “on the app” and was driving their vehicle solely for personal
reasons, that driver would still be a limited tort plaintiff if involved in an
accident on that particular trip.
Other grey areas in this regard involve those cases
where the Uber or Lyft driver is driving around while “on the app” waiting for
a fare to contact them for a ride as well as when the Uber or Lyft driver has
received a message from a fare and is on the way to pick up that person for a
ride. The courts may struggle with these scenarios in determining whether that
Uber or Lyft driver should be deemed a limited tort or full tort plaintiff
where that driver had previously elected the limited tort option.
In the end, it will surely be interesting to see how
these novel areas of law pertaining to motor vehicle accidents involving Uber
and Lyft drivers begin to play out in the courts across the commonwealth.
Daniel E. Cummins is a partner in the Scranton law firm
of Foley, Comerford & Cummins where he focuses his practice in automobile
accident litigation matters.
Copyright 2019. ALM Media Properties, LLC. All rights
reserved.
