Maryland Food Delivery Accident Law; An Overview for Drivers Who Deliver Food & Motorists Injured by Food Delivery Drivers

Food delivery services have become quite popular throughout the country. With stay-at-home orders in place across multiple states, more and more people are using food delivery services. The drivers who work for these services, as well as others on the road, may face several challenges if an accident occurs.

Whether you’re a food delivery driver or a motorist injured by a food delivery driver, it’s important to know your rights after an auto accident occurs.

I. CLAIMS AGAINST FOOD DELIVERY DRIVERS OR COMPANIES

Some people argue that drivers for food delivery services are more prone to drive faster or more recklessly because of the alignment of incentives in which they will try to deliver food faster to maximize profits in the least amount of time.

As such drivers are paid by delivery and not by the hour, one can argue that they’re more likely to speed or otherwise drive less safely. Common allegations against these drivers in litigation frequently include but are not limited to:

1. Speeding
2. Execution of unsafe lane changes
3. Delivering food when tired
4. Distracted driving/texting or looking at their phone while driving – talking on the phone

A. Employees vs. Independent Contractors

Most states have laws that permit injured parties to sue a parent company for negligence under a theory of vicarious liability where the negligent employee, acting in furtherance of the interests of their employer, causes injury to a third party.

Whether a claimant can successfully recover from the parent company itself, in addition to the negligent driver, frequently depends on whether the delivery driver was an employee or an independent contractor at the time of the accident.

In the same way that most states have laws allowing injury victims to recover from the employer due to a negligent employee’s actions, many states also have laws prohibiting recovery from the employer where the negligent actor was “merely” an independent contractor.

Most food delivery companies claim their drivers are not employees but are independent contractors. They, therefore, typically argue they should not be liable for the negligence of the driver’s actions.

Whether the food delivery companies can be held liable for the actions of a particular delivery driver will depend on a number of factors under each state’s laws defining these roles and responsibilities, as well as the particular policies and rules adopted by the particular food delivery company.

However, in general, the issue as to whether the parent company can be held accountable for their agent’s negligence under a theory of vicarious liability turns not on whether they classify the negligent actor as a contractor or an employee but rather on whether various other factors join together to determine the nature and extent of the control the parent entity exerts over the negligent actor.

B. Differences Between Employees and Contractors

Generally, there is no hard and fast rule to determine whether a delivery driver was an employee or an independent contractor. Rather, the legal analysis and state-by-state caselaw look at a variety of factors to make this determination.

In general, the more control the employer has over the performance of the job function, the less likely it is that the delivery driver will be found to be an independent contractor. For example, it’s more probable that a driver could be determined to be an employee if they are:

1. Paid on a weekly or bi-weekly basis
2. Provided equipment, uniform, stickers, or other advertisement materials
3. Provided benefits, insurance, health insurance, vacation time
4. Required to clock in or clock out or be paid hourly and not by the job
5. The manner and method in which the driver performs their functions is limited or controlled in some way by the parent company

(Look for restrictions in scope or control being exerted by the employer as to the manner and method that the driver performs their duties or other benefits provided by the employer on behalf of the driver.) The more control exerted, and the more benefits are provided, the more likely an argument could be made that the driver is an employee.)

C. Available Damages

Whether you’re a food delivery driver or someone injured in an accident with a food delivery driver, you may have a right to seek compensation for your damages. You may also face unique legal problems due to some of the complicated distinctions drawn above.

Because some state laws will shield food delivery companies from liability, sometimes both parties may be left without recourse. Because of this, some food delivery companies have attempted to provide coverage to their drivers or those injured by them.

II. INSURANCE COVERAGE CONSIDERATIONS WITH GRUBHUB, DOORDASH, POSTMATES, UBER EATS, ETC.

Both food delivery drivers and those impacted by their delivery runs can be significantly impacted if an accident occurs. Depending on the food service that the delivery driver is working for, different insurance coverages may be available.

If you’re a food delivery driver or are in an accident with one, one of your important considerations will be determining which company is involved at the time of the accident and what benefits they offer.

A. Grubhub

Grubhub is a food delivery service that operates online and via mobile apps. The app connects local restaurants with food delivery drivers who pick up prepared food from local takeout restaurants and deliver it to customers. The company is based in Chicago and was founded in 2004. It operates across the U.S. and, for the most part, treats its delivery drivers as independent contractors.

Grubhub places some restrictions on drivers. Per the Grubhub website, all delivery “partners” must:

• Be at least 18 years old (or 21 in Chicago and LV)
• Own a smartphone with a data plan
• Have a valid driver’s license for at least two years
• Have their own auto insurance

1. Insurance Limitations
   • Grubhub does not appear to offer any kind of liability insurance for its drivers. Drivers operating without liability insurance could face serious coverage issues if they hurt someone else in the course of a delivery.
   • According to the Grubhub website, Grubhub drivers must have their own insurance policy with a private insurer to ensure they have sufficient coverage in place.
   • Watch out for coverage disclaimers: Many private auto policies may disclaim coverage on private passenger autos where the driver has an accident while engaged in a commercial activity inside the vehicle (such as transporting people or food for hire). Accordingly, Grubhub food delivery drivers may want to check with their own private auto insurer to ensure that they will be afforded coverage in the event they cause an accident to a third-party motorist. Such drivers may need to purchase a commercial policy, but this may vary on a state-by-state basis.
2. Third-Party Claims Against Grubhub Drivers
   • Motorists injured by a Grubhub driver may face issues if that driver has no applicable liability coverage to pay for their damages. For example, if the Grubhub Driver has no viable insurance coverage, or is excluded from coverage due to acting commercially without a commercial policy in place, a third-party injury claimant may be required to make an Uninsured Motorist claim through their own insurance if there is no viable liability coverage through the at-fault delivery driver, or through Grubhub itself.
   • In some states, an injured motorist might be able to hold the Grubhub parent entity liable if they are able to argue under the laws of their applicable state that the delivery driver was an employee and not a contractor at the time of the collision. However, note that this might be difficult in many states as Grubhub does not offer benefits or insurance to its drivers and, for the most part, tries to treat and categorize them as independent contractors despite the fact that they are labeled as “partners,” on the Grubhub website.

B. DOORDASH

DoorDash is a San Francisco-based on-demand prepared food delivery service. Similar to Grubhub, DoorDash requires its drivers to be 18 or older and have a clean driving record without DUI, reckless driving, or any other major violations within the last seven years. They also run a potential criminal background check on potential drivers.

Insurance Considerations for DoorDash Drivers

• DoorDash does not appear to offer ANY property damage coverage for the food delivery driver’s vehicle. According to their website, they do provide excess auto insurance for DoorDash drivers, but only for property damage or bodily injury caused to third parties. The DoorDash website specifically says that they carry: “a commercial auto insurance policy that covers up to $1,000,000 in bodily injury and/or property damage to third parties arising out of accidents while on an active delivery. To qualify as “on an active delivery” you must be in possession of the goods to be delivered.”
• DoorDash labels drivers as independent contractors and specifically tells drivers on its website that as they’re operating as independent contractors, they’re required to maintain their own insurance, and that if they fail to do so, coverage may not apply. DoorDash drivers will likely have to be responsible for dealing with their own injuries or property damage claims through their own insurance carriers.
• Limitations of coverage: As with Grubhub above, note that many primary personal auto insurance policies specifically exclude coverage or provide coverage exclusions for the commercial operation of private passenger vehicles while operating as taxis or delivery vehicles. Therefore, many such drivers may end up in a gray area or black hole where neither carrier is willing to provide coverage. Food delivery drivers may want to confirm with their private insurance carrier that they themselves will be afforded medical coverage, property damage coverage, or other coverages in the event they are hurt in an accident or suffer property damages.
• Motorists hurt by a DoorDash driver should be able to make a claim through DoorDash’s insurance coverage.

C. UBER EATS

Uber Eats is an American online food ordering and delivery platform launched by Uber, based out of San Francisco, California.

1. Insurance Considerations:
   • Uber Eats generally offers $1,000,000 in liability coverage to protect their drivers in the event their driver causes harm to another person during the course of a delivery. This is similar to the coverage provided generally for Uber drivers who are transporting people instead of food. Uber Eats is unique among the other delivery platforms in that they appear to offer their drivers this coverage not just when they’re engaged in delivery but whenever they are “available” to make a delivery. What constitutes availability to make a delivery hasn’t been tested by the law in most states, but one can surmise that availability most likely involves signing in to the app and waiting for an available delivery in the vehicle.
   • Interestingly, the coverage amounts afforded to the driver may change depending on what the driver’s “status” is. For example, if the app is currently on and the driver has not yet begun a delivery, the driver is apparently covered for $50,000/$100,000/$25,000 for individual/liability/property damages.
   • Uber Eats drivers also should also be sure they are covered by viable personal insurance to avoid having to pay out of pocket for damages they cause in the event they are at fault for causing an accident. Such drivers, as stated previously, should verify with their private insurance carriers that they will have some type of coverage if they get hurt or hurt others in the event Uber disclaims coverage or the driver falls into some type of Uber coverage “gray area.” The bottom line is that drivers for Uber Eats should read their “independent contractor agreements” carefully, and when in doubt, they may want to contact an attorney to review their particular situation and ensure they have the coverage they need before an accident occurs.
   • Motorists injured by Uber Eats driver: Injured claimants hurt by an Uber Eats driver generally can recover from Uber’s insurance. Uber carries a million-dollar insurance policy to cover each loss. This policy also contains a provision for $1.25 million dollars in uninsured motorist coverage. Depending on the particular policy issued, such coverage might also cover passengers riding along in an Uber Eats food delivery vehicle who were similarly hurt but who were not the actual delivery driver.

D. POSTMATES

• Postmates does classify their “Postmate Couriers” are independent contractors and specifies that they must have a personal auto liability policy.
• Postmates vehicles now carry a $1,000,000 insurance policy that matches coverage available for Uber and Lyft drivers. The Postmates website guides that a delivery occurs from “when you click accept until your customer receives their order.” Postmates, for example, also indicates coverages for medical expenses up to $1,000,000 and other benefits.
• Postmates drivers may be able to access the uninsured and underinsured motorist coverage portion of this policy where the at-fault driver did not have auto insurance at the time of the accident.
• Motorists hurt by a negligent Postmates courier can typically recover from the driver’s Postmates insurance coverage if the driver was in the course of a Postmates delivery.

III. WHAT TO DO AFTER A FOOD DELIVERY ACCIDENT

Whether you’re a delivery driver or you were hurt by a delivery driver, you may face challenging legal problems dealing with insurance coverage disputes on top of the trauma and aggravation that comes following an injury in a motor vehicle accident. It can be very difficult to handle a delivery driver accident claim on your own.

We generally recommend that you:

1. Call 911 and report the accident.
2. Take photos of the accident scene and your injuries.
3. Get copies of the driver’s insurance information, company policies, and, if applicable, food delivery policies.
4. Seek necessary medical care.
5. Finally, you may want to consult with a personal injury lawyer with experience handling food delivery injury claims to help you file a claim and negotiate with insurers.

We have many years of experience handling these types of claims, and we’re here to help you in any way possible.