Wednesday, November 19, 2014

Can I get an uber lift?

Transportation can be an issue for anyone, but it can also be an issue in handling claims. There are those who wonder if it will raise itself in resulting claims, misclassificationand other liability.

I recall a workers' compensation case I defended many years ago that included a claim for medical transportation. The transportation was frustrating, in a peripheral sense. The adjuster had no qualms about the need for and appropriateness of transportation. As with a variety of other workers' compensation issues, it was not the "if" or the "why," but the "how" that was troubling.

This injured worker lived and had worked in a small rural Florida community. The transportation issue came down to one key point, there simply was none. The town was not conveniently located. The big transportation companies were all willing to provide the transportation, but would charge to drive there from their city, transport the worker to the medical appointment and then charge to return to their city.

It is difficult to fault the transportation company, the hours their driver spent getting to the injured worker could be more efficiently employed transporting people within the city where the driver and company were located. So, they charged for the time spent getting to the remote location. If your perception of Florida is urban, like Miami, Tampa or Jacksonville, understand that there are many towns here that are just not that easy to reach. All of Florida is not a burgeoning metropolis.

The injured worker certainly cannot be faulted. He lived in a rural community that had limited conveniences. Not every community can have the services that are available in metropolitan communities like Orlando, Miami, and Destin (O.K. that last one maybe not so much). It is not just medical transportation, there are instances in which an injured worker in Florida will be unable to obtain medical care locally, some travel hours just to reach a specialist to treat their injury. Rural life can have its complications and challenges.

The adjuster eventually found a taxi service in the town. It was not listed as such in the phone book. Imagine a taxi service not listed in the phone book? This was not "Yellow Cab." After the first use, the injured worker's attorney called me to complain about the provided medical transportation with this service. It turns out, I kid you not, the "taxi" was a (thankfully four-door) Chevrolet Chevette. If you do not remember these, they were economy cars produced in the 1970s and 1980s. At the time,
 Popular Science compared them to the "Omni and Rabbit," but if you do not remember the Chevette, you likely do not remember these either. Today this might be comparable to the Mini Cooper or Toyota Yaris. The Chevette was an economy car with little in the way of creature comforts.

The point is that viable commercial transportation exists in some places, and not in others. Decades later, we are the beneficiaries of the digital age, the Internet, electronic filing and so much that emanates from technological improvement. And it is now changing the way people find a ride. Ride-sharing programs are becoming widespread on various smartphone applications. They may make finding a ride simpler, they may also raise additional questions though.

As an aside, on the downside, all this change means we must constantly adapt and adjust. A recent posting on Linkedin caught my eye in this regard,
 Are You Ready to Become Obsolete? What an impertinent question! That post is worth reading.

I have written about the challenges that misclassification bring to business. And when I say business, I mean "doing business," not just owning or managing a business. This is a challenge for hard working individuals who are misclassified. It is a challenge for honest businesses that appropriately classify and then try to compete for work with businesses that break, or tortuously bend the law. This is a challenge for the entire system that is workers' compensation.

These thoughts came to be when I recently had lunch with a group of workers' compensation luminaries from around the world at the IAIABC conference in Austin, Texas. As we discussed the challenges to this industry, one said "I want to hear more about this uber lift issue." Sounds like a beverage you might get on a tour of the Wonka factory. While "uber lift" is what I heard, what they said was "This Uber, Lyft issue."

I began to look into these (the internet to the rescue once again). Uber and Lyft are two of the "ride-share" applications that are becoming commonplace. Instead of relying on taxicabs, people can download an application (for the older generation, that is a computer program on your phone and for the younger generation, that is simply an "app"). Each service helps individuals who need a ride to connect with people who are willing to provide a ride.

Lyft says that "with the tap of a button" you can get a ride "whenever you need one" from a "reliable community driver within minutes," and "it's that easy." How does it work? You just tap your phone and the software matches you with a "friendly, background-checked driver" within minutes. You see the driver's approach on your smart-phone (believe it or not, I do know one guy that does not have a smart phone), and you get a picture of the Lyft driver on your phone in advance (mom always said not to ride with strangers). Lyft says "hop into that front seat and greet your driver with a friendly fistbump." When you arrive, you pay with your smartphone, through the app.

Uber is similar. They promote that it takes "one tap to ride," that their service is "reliable," that their pricing is "clear," and that payment is "cashless & convenient." Is it lucrative? The New York Magazine says Uber Might Be More Valuable Than Facebook Someday(again for my generation, Facebook is a popular application on the internet for obsessively sharing every minute detail of your life with every other person on the planet that you decide to "friend").

That's all there is to it. The Lyft and Uber owners take a cut on the payment, you get to your destination, the driver makes a living, no licenses, no regulations, no muss, no fuss. What could be wrong with this picture?

Well, some government officials are skeptical about or against these services. These services are not licensed the way taxi cabs are. According to the
 Washington Postmost cities regulate the number of taxi operators and require certain insurance, and driver background checks. The Post notes that "taxi cab companies are some of the most powerful political interests in cities across the country" and the cab companies are not pleased with Uber, Lyft, and similar competition. 

The Post notes that California and Colorado regulate ride sharing through state regulation, and Virginia has outright "banned Uber and Lyft." In other locales, municipalities have banned application-based ride sharing in places "like Vancouver, Berlin and Hamberg." Others, like Seattle have "voted . . . to severely limit the number of rideshare driver permits."

There may be safety concerns also. Recently, Cnet questioned
"How Risky is Your Uber Ride? Maybe More Than You Think." Their story recounts the Uber ride of a 35 year old and friends in San Francisco. The course was punctuated with increasingly heated exchanges, and the alleged driver ultimatum for the group to get out of his car. Allegedly, the driver, armed with a hammer, confronted the passengers after they were out of the car, and then beat one. According to a witness, he "clobbered him in the head with the hammer." The story says the passenger may or may not "regain vision in his left eye."

Who is responsible? Before that becomes the focus, we can switch to some hypothetical facts. Imagine instead that it had been the passenger that assaulted the driver and it is now the driver who needs medical care. Is the driver covered by workers' compensation?

In either instance, is the rideshare company, Uber, Lyft, or otherwise, responsible for damages caused by or to the driver? How about for damages in an accident in which neither the ride-share driver or the passenger is at fault? Allegedly, these services claim that they are not employers, and deny responsibility for any liability of or to the drivers.

So, there may be disputes emanating from the use of these services. Drivers, passengers, pedestrians and more may have questions for the legal community about liability, responsibility and damages. Recently, another passenger awoke from a night on the town to find that her 20 minute
Uber ride home had drained over $360.00 from her bank account. Perhaps not as affordable as was expected? She took to social media the next day to find funds for her rent (essentially a bunch of strangers contributed cash to help her, based on her story; another Internet phenomenon). You just can't make this stuff up. 

Are the drivers for these services employees or contractors? In Florida, an "employee means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract for hire . . .." 440.02(15)(a), F.S.

There is a "passenger vehicle-for-hire drivers" exception in 440.02(15)(d)10. F.S. This says "employee" does not include "a taxicab, limousine, or other passenger vehicle-for-hire driver who operates said vehicles pursuant to a written agreement with a company which provides any dispatch, marketing, insurance, communications, or other services under which the driver and any fees or charges paid by the driver to the company for such services are not conditioned upon, or expressed as a proportion of, fare revenues."

There are those who would argue that in Florida drivers dispatched by Uber or Lyft are within this exception and not employees for the purpose of workers' compensation. One question might be how are the Uber or Lyft shares/payments calculated, as a proportion of fare revenues? In this context, perhaps these services are not misclassifying; perhaps they are simply competing against other dispatching services like Yellow Cab, whose drivers are likewise independent contractors? 

Are Yellow Cab,
 Uberor Lyft responsible for injuries to passengers, pedestrians, or other motorists? Do any or all of them require that their drivers maintain insurance coverage (including uninsured motorist) in the event that an accident or assault occurs? Will regulation be required regarding licensing, insurance, background checking, or otherwise?

Would such services solve the transportation issues of people in rural areas? There are many parts of Florida that do not have local cab companies. But might the result of a "tap" to
 Uberor Lyft there result in a response by someone driving a Chevette, Honda Fit, or Smart For 2? Would an insurance adjuster be willing to use such services for medical transportation absent assurances of licensing, insurance, and safety generally?

There are great expectations for ride sharing as noted by New York Magazine. There are regulatory resistance issues as noted by The Washington Post. There are potentials for liability as illustrated by Cnet. There are questions about insurance coverage in the event of a simple accident.

In short, there is much still to learn about this development in ride sharing. How will we adapt personally and legally to this and other innovations of the Internet age? I find myself agreeing with the IAIABC luncheon group, "I want to hear more about this uber lift issue."

Updated 121014: An interesting blog Uber Blocked from Brazil to California as Hurdles Mount noted complications including issues in Los Angeles, San Franciso, Portland, New Dehli, and Rio de Janiero. 

120814: An interesting March 2013 story about an Uber driver in Washington DC accused of raping a 20 year old passenger. The story is coming up in Google searches again in light of a more recent story from New Dehli. The city cracked down on Uber after accusations of rape against an uber driver

Updated 120314: An interesting recent taxi case from North Carolina.