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This past session, the Florida Legislature passed, and the Governor promptly signed into law, House Bill 221. This bill constitutes a statewide overhaul of the laws governing transportation network companies (“TNCs”) like Uber and Lyft. Unfortunately, the legislation has horrible ramifications for consumers who are injured by a TNC driver, as it effectively eliminates certain legal theories. Thankfully, there are still viable avenues to recovery under the right facts and with enough ingenuity and persistence.

This Article will summarize the current law of the land with respect to suing TNCs after the enactment of HB 221, including a specific discussion of the causes of action which remain available for injured Floridians.

HB 221: The “Good,” The Bad, and The Ugly
Make no mistake, HB 221—which is codified at Section 627.748, Florida Statutes (2017) and took effect on July 1 of this year—is heavily skewed to favor and serve the interests of Lyft and Uber, with very little offsetting benefits for consumers. This is particularly true with respect to personal injury litigants.

Most critically, the new law determines, via legislative fiat rather than reasoned judicial analysis, that Lyft, Uber, and other TNCs are not “common carriers.” That determination has profound implications. Under Florida law, a common carrier owes an “elevated, non-delegable duty of care” to provide safe passage. Moreover, “a common carrier cannot relieve itself from its primary duty to maintain safe accommodations for its passengers and their baggage by contracting with an independent contractor to perform its functions.” Over the last several decades, Florida courts have held that taxi cabs, city buses, airlines, ambulances, and airport limousines, among other transportation service providers, are common carriers who owe a heightened, non-delegable duty of care to their passengers.

Although no Florida court had occasion to weigh in on the common carrier doctrine’s applicability to Lyft and Uber, the doctrine had been successfully asserted elsewhere. Notably, in Doe v. Uber Techs., Inc., 184 F. Supp. 3d 774 (N.D. Cal. 2016), the Court denied Uber’s Motion to Dismiss, in part, reasoning that the two Jane Doe plaintiffs sufficiently pled claims against Uber under the common carrier doctrine which could potentially render the company liable for the sexual assaults its drivers allegedly committed. The new law robs future Florida litigants from making the common carrier arguments that were successfully advanced in the California action.

The new law also provides a statutory resolution to the question of whether TNC drivers are “employees” or “independent contractors.” Of course, this classification has major implications for tort law, including, perhaps most notably, for vicarious liability under the respondeat superior doctrine. Under the new law, TNC drivers are considered to be independent contractors and not employees so long as the TNC: (1) does not unilaterally set hours; (2) does not prohibit drivers from using other TNC networks; (3) does not restrict the driver from engaging in other trades; and (4) agrees in writing with the driver that the driver is an independent contractor. One can safely assume that Lyft and Uber will do everything they can to meet these requirements in all cases moving forward. As a small silver lining, the retroactivity clause of the independent contractor provision was stripped out in the committee process, so there remain some cases for which this provision does not apply.

So, what did consumers receive in compromise for the significant legal rights taken away by the bill? For injured consumers, the so-called protections afforded by the bill come primarily in the form of insurance “requirements.” However, those “requirements” are, in reality, nothing more than a codification of the status quo. Lyft and Uber have had policies affording various phases of coverage ranging between $0 and $1,000,000 since at least 2014. These different phases of coverage have long worked, and will continue to work under the bill, as follows:
• $0: When the driver is not logged into the app. The plaintiff must instead look to the driver’s personal policy—should one exist, and should no coverage exclusions apply.

• $50K per injury/$100K per incident/$25K for property damage: When the driver is logged in, but has not accepted a ride request.

• $1,000,000: When the driver is logged in and has accepted a ride request.

The bill also contains a variety of background check requirements. Again, both Lyft and Uber claim to have been doing this for years, so it is hard to view this as a new protection for consumers, or as justifying any type of significant tradeoff of consumer rights. Thankfully, however, the new law expressly provides that mere compliance with these minimal requirements “does not extinguish any claim otherwise available under common law or any other statute.” As will be discussed in the next section, this provision helps to preserve critical negligence theories.

What’s Left?
In some cases, the $50K, $100K, or $1M limits covering the driver’s negligence may prove sufficient. However, in cases involving severe or catastrophic injuries, the medical bills alone can greatly exceed these figures. In such instances, it may become necessary to pursue a claim for direct or vicarious liability against the company itself. The respondeat superior and common carrier doctrines provided strong theories to pursue against Lyft and Uber in Florida just a few months ago. Those specific doctrines, however, have been taken off the table by HB 221. As a result, pursuing a claim against Lyft or Uber has become far more difficult.

Thankfully, with the right facts, there are still viable theories to pursue against the companies themselves. The following is a brief summary of the theories which are still viable. The list is by no means exhaustive, and of course, the theories applicable to each individual case will vary, so independent research into the law and facts is a must before pursuing any Lyft or Uber case.

1. Negligent Hiring/Selection and Negligent Retention
Plaintiffs can still pursue various direct negligence theories in the appropriate circumstances. Most prominently, claims for negligent hiring or selection should be explored in each case. Of course, these theories generally hinge on locating some type of “red flag” in the driver’s background that should have tipped the company off to the person’s dangerous or unsafe characteristics and propensities. Unfortunately, this can prove particularly problematic in cases involving a driver who recently immigrated into the country, in which case it can be difficult or impossible to vet the full extent of the driver’s history. For instance, in the California Jane Doe 1 and 2 case referenced above, the Court dismissed one of the Plaintiff’s negligent hiring claims, and reasoned that Plaintiff’s allegations that “Dakiri [the driver] had been in the country for less than three years” failed to establish that there was anything “that should have prevented Uber’s approval of Dakiri as a driver.”

Of course, red flags can also arise during the course of the driver’s relationship with the company. Examples of such red flags include complaints by other customers, traffic citations, and arrests. In such instances, it may be possible to pursue a negligent retention claim. Notably, the new legislation requires TNCs to maintain “individual records of TNC drivers for at least 1 year after the date on which the TNC driver’s relationship with the TNC ends.” Those records should be sought in discovery in any case against Lyft or Uber, and carefully reviewed for any passenger complaints or other issues that could support a negligent retention theory.

2. Negligent Training, Supervision, and Monitoring
In addition to hiring and retention theories, it may also be possible to pursue claims for negligent training, supervision, and monitoring. When pursuing one of these claims, it is critical to review the company’s websites, advertisements, and public statements to look for, among other things, any claims the company has made with respect to its ability to monitor drivers and provide feedback to them. For example, Dorothy Chou, Uber’s “Head of Safety, Consumer Protection, & Self Driving Public Policy” recently stated that, through the company’s telematics test programs—which use the accelerometers, GPS’s, and gyroscopes in the driver’s phones—Uber has “empowered drivers with information to allow them to drive more safely.” Recent reports claim that the company has seen “a 5 percent reduction in passengers complaints about driving and an 8.5 percent reduction in drivers speeding over 80 mph,” since instituting the telematics programs.

The ability to monitor and provide feedback to drivers could possibly establish the requisite ability to control that could, in turn, help form the basis for a cognizable negligence claim in instances where such control was not exercised to prevent foreseeable harm.

3. Fraud and Misrepresentation
Moreover, the companies’ public statements and advertisements may also provide a basis for a fraud or misrepresentation claim. In the California Jane Doe 1 and 2 case, the Court held that the plaintiffs stated valid fraud claims based on Uber’s statements regarding passenger safety. In so ruling, the Court explained that “[i]t is reasonable . . . to infer from the allegations in the complaint that Doe 1 and Doe 2 assert that they accepted rides from Uber drivers in reliance on the statements Uber made regarding rider safety.”

The allegations specifically quoted and paraphrased by the Court include:

(1) “Uber made false statements that riders would be safe taking rides through Uber, while knowing that Uber ‘had not adequately screened its drivers;’” and
(2) “Uber fraudulently misrepresented its ability to track its drivers ‘and ensure that the drivers were taking the most direct routes to Plaintiffs’ destinations, instead of going far off-route.’”

4. Non-Delegable Duty of Care
Although the new law provides that TNCs are not “common carriers,” this legislative categorization should not control the determination as to whether a TNC owes a non-delegable duty of care. After all, non-delegable duties are not confined and etched into stone to the specific categories previously recognized by the Courts. Instead, Florida common law has long recognized that “[t]he existence of special relationships or public policy considerations may give rise to non-delegable duties.”

In the case of traditional common carriers, Florida Courts recognized the existence of a non-delegable duty of care based on the reality that “the passenger must entrust his or her bodily safety to the care and control of the carrier’s vehicle and employees, and he or she cannot freely or independently walk away, once the undertaking has commenced.” The exact same thing is true in the case of TNCs. When a Floridian enters a Lyft or Uber, they are no better able to “freely or independently walk away” than they would be if they were in a taxi cab, airport limousine, or city bus. There is simply no legally significant reason why the TNC passenger should be owed a lesser duty than that owed to the taxi cab, airport limousine, or city bus passenger.

Of course, TNCs will strongly argue against the imposition of a non-delegable duty of care. Indeed, in other jurisdictions they have even argued that they are not transportation service providers at all, but are instead mere “technology companies” or “brokers.” Our research shows that these arguments have been soundly rejected. As explained by one Court:

Uber’s self-definition as a mere ‘technology company’ focuses exclusively on the mechanics of its platform (i.e., the use of internet enabled smartphones and software applications) rather than on the substance of what Uber actually does (i.e., enable customers to book and receive rides). This is an unduly narrow frame. Uber engineered a software method to connect drivers with passengers, but this is merely one instrumentality used in the context of its larger business. Uber does not simply sell software; it sells rides. Uber is no more a ‘technology company’ than Yellow Cab is a ‘technology company’ because it uses CB radios to dispatch taxi cabs, John Deere is a ‘technology company’ because it uses computers and robots to manufacture lawn mowers, or Domino Sugar is a ‘technology company’ because it uses modern irrigation techniques to grow its sugar cane. Indeed, very few (if any) firms are not technology companies if one focuses solely on how they create or distribute their products. If, however, the focus is on the substance of what the firm actually does (e.g., sells cab rides, lawn mowers, or sugar), it is clear that Uber is most certainly a transportation company, albeit a technologically sophisticated one. In fact, as noted above, Uber’s own marketing bears this out, referring to Uber as ‘Everyone’s Private Driver,’ and describing Uber as a ‘transportation system’ and the ‘best transportation service in San Francisco.’

In short, regardless of the labels the Legislature has chosen to apply or not apply, a strong argument can be made that TNCs owe a non-delegable duty of care based on the nature of the undertaking and services at issue.

5. Partnership and Joint Venture/Enterprise
A plaintiff may also consider pursuing partnership or joint venture theories. The gist of this type of theory would be that Lyft and Uber enter business relationships with their drivers revolving around transporting passengers for a profit. If successful, these types of theories could possibly lead to vicarious or imputed liability on the part of the companies for their drivers’ torts.

Unfortunately, Judge Batts of the United States District Court for the Southern District of New York recently dismissed a partnership claim in a case involving an alleged assault committed by an Uber driver. In so ruling, the Court recited the partnership factors contained in New York substantive law and determined that the plaintiffs “failed to allege that any of these partnership factors are present between [the driver] and Uber.” However, given that the Court was applying different substantive law, and that the pleading apparently had several deficiencies, the New York decision should be distinguishable from a Florida case with different allegations to support the existence of the relationship at issue.

HB 221 radically altered the legal landscape with respect to pursuing claims against Lyft and Uber on behalf of injured Floridians. Most significantly, the bill effectively eliminated certain specific causes of action. However, with the right facts, ingenuity, and persistence, there are still viable causes of action that can be pursued in these cases.

[1] Fla. Stat. § 627.748(2).

[1] Hinckley v. Palm Beach Cty. Bd. of Cty. Comm’rs, 801 So. 2d 193, 196 (Fla. 4th DCA 2001); Nazareth v. Herndon Ambulance Serv., 467 So. 2d 1076, 1079 (Fla. 5th DCA 1985).

[1] Hinckley v. Palm Beach Cty. Bd. of Cty. Comm’rs, 801 So. 2d 193, 196 (Fla. 4th DCA 2001).

[1] 3-100 Florida Torts § 100.03 (2017) (collecting cases).

[1] Fla. Stat. § 627.748(9).  Although the independent contractor provision is obviously harmful to causes of action premised on an employer-employee relationship, the harm done there is softened by the reality that the Third District Court of Appeal had issued a horrible order on this issue back in February.  In that decision, McGillis v. Department of Economic Opportunity, a former Uber driver appealed, pro se, the Department’s determination that he was not entitled to unemployment benefits.  The Court affirmed the Department’s determination, reasoning, in part: “Uber and McGillis contractually agreed that McGillis’ work did not make him an employee. A review of the parties’ working relationship confirms this understanding. Due in large part to the transformative nature of the internet and smartphones, Uber drivers like McGillis decide whether, when, where, with whom, and how to provide rides using Uber’s computer programs. This level of free agency is incompatible with the control to which a traditional employee is subject.”  McGillis v. Dep’t of Econ. Opp., 210 So. 3d 220, 226 (Fla. 3d DCA 2017).

[1] Uber Newsroom, Insurance for Ridesharing with Uber, Uber.com, available at https://newsroom.uber.com/insurance-for-uberx-with-ridesharing/ (Feb. 10, 2014) (last accessed July 10, 2017); Lyft Blog, Lyft’s Insurance Policy, Lyft.com, available at https://blog.lyft.com/posts/2014/7/10/lyfts-primary-insurance-coverage (July 10, 2014) (last accessed July 10, 2017).

[1] Rich McCormick, Uber Expands Background Checks for All US Drivers, TheVerge.com, available at https://www.theverge.com/2014/2/13/5407606/uber-new-expanded-background-checks-for-us-drivers (Feb. 13, 2014) (last visited July 10, 2017); Leonor Vivanco and Cynthia Dizikes, Gaps in  Some Ride-Sharing Firms’ Background Checks, Chicago Tribune, available at http://articles.chicagotribune.com/2014-02-14/news/ct-rideshare-background-checks-met-20140214_1_background-checks-ride-sharing-drivers (Feb. 14, 2014) (last accessed July 10, 2017).

[1] Fla. Stat. § 627.748(11).

[1] Doe v. Uber Techs., Inc., 184 F. Supp. 3d 774, 789 (N.D. Cal. 2016).

[1] Fla. Stat. § 627.748(14).

[1] Mary Wisniewski, Uber Says Monitoring Drivers Improves Safety, But Drivers Have Mixed Views, Chicago Tribune, available at http://www.chicagotribune.com/news/local/breaking/ct-uber-telematics-getting-around-20161218-column.html (Dec. 19, 2016).

[1] Id.

[1] Doe v. Uber Techs., Inc., 184 F. Supp. 3d 774, 789-90 (N.D. Cal. 2016).

[1] Id.

[1] Id.

[1] Hinckley v. Palm Beach Cty. Bd. of Cty. Comm’rs, 801 So. 2d 193, 196 (Fla. 4th DCA 2001).

[1] Nazareth v. Herndon Ambulance Serv., 467 So. 2d 1076, 1079 (Fla. 5th DCA 1985).

[1] O’Connor v. Uber Techs., 82 F. Supp. 3d 1133, 1141-42 (N.D. Cal. 2015).

[1] 2-50 Florida Torts §§ 50.20-50.21(2017).

[1] Phillips v. Uber Techs., Inc., 2017 U.S. Dist. LEXIS 94979 (S.D.N.Y. June 14, 2017).

[1] Id. at *19-20.