-
Prajval Albuquerque
(Paralegal and Proprietor Lex Tweak)
·
Insights for Attorneys:
1.
The Insurance policies of Uber, Lyft, Uber eat etc, are listed on their
website. This can help you determine their policy limits.
2.
The phases [The phases appear below in the article] determine the extent
of insurance coverage, so it is very essential that you determine the same
through the discovery.
3.
Some of the Uber carriers are considered both a TCP and a TNC. [These Terminologies’
are explained later in this article]
4.
In California you cannot use the “John Doe” as a defendant if you knew
or should have known who the Defendant was.
5.
Your personal investigator can give you more inputs on background of
drivers as compared to investigation done by Uber and Lyft.
6.
What happens if the TNC driver is logged into both Lyft and Uber: Though there is no legal provision on this
but ideally the platform from which the driver had accepted the passenger while
the accident took place that TNC provider would be responsible.
7.
Avoid filing form complaints in such cases.
8.
The Intention of TNCs fighting against AB5 is also to deny their drivers
the benefits and legal remedies that their employees get are entitled to: Even
in their Insurance Policies Uber and Lyft do not list the drivers as employees.
9.
Take every effort to obtain the “Telematics” data as it can lead to some
vital information in ascertaining the liability.
·
Understanding a Rideshare Case:
1.
Prior to 2013 there was no law holding Uber or Lyft accountable for the
acts of the TNC
driver
because the drivers were independent contractors. By the introduction of the AB-2293
Transportation network companies insurance Coverage. (2013-2014) this
position in law changed. Post this bill change was made in the Public
Utility Code, Section 5430[1],
thus holding the insurer of the TNC company liable for the acts of TNC Driver.
2.
This law will apply to Uber Eats as well.
· Duties of a TNC and TCP:
1.
The TCP and a TNC must have a alcohol testing substance control program.
2.
The TCP must get the History of the driver once in every six months
through a DMV request.
3.
Vehicle Inspection Requirement is governed by [PUC Section
5431(b)(3)]: The vehicle has to be inspected at a licensed facility, once in
every 12 months or every 50,000 miles. Usually, the background checks are not
thoroughly done.
4.
TNC can’t hire person with criminal history PUC Section 5445.2[2]
5.
A TNC Driver must possess a valid California Driver’s license, be at least
21 years of age and must provide at least one year of driving history before
providing TNC services.
6.
The TNC must obtain each TNC driver’s driving record before the driver begins
providing service and annually thereafter.
7.
To do a background check:
·
Uber uses Chekr.
·
Lyft uses Sterling Trust Foundation.
8.
The TNCs must establish a program to ensure that all the drivers are
safely operating the vehicle prior to the driver being able to offer the
service.[3]
9.
The TNC must establish an intoxication policy[4]
10. Vehicle inspection[5]:
· The vehicle must be inspected by a licensed facility once in 12 months or once every 50,000 miles.
11. People whom TNC cannot hire:
·
Person registered on the
United States DOJ National Sex Offender public website.
·
Person convicted of:
Felony under Sections 667.5, 236.1, 11413, 11438, 11418 or 11 419 of Penal
Code, within the past 7 years. These offences are:
a)
Misdemeanor assault or battery.
b)
Domestic violence.
c)
Driving under influence of alcohol or drugs.
· Violations of Section 18540 under Election
code.
· 67,68, 85, 86, 92, 93, 137, 138, 518, or 530, Subdivision (a) of Section 484 of, or subdivision (a) of Section 487 of the Penal Code.
12.
Background Check under PUC
Section 5445.2[6]
for:
·
Human Trafficking.
·
Terrorism.
·
WMD.
·
Biological Weapons
·
Bribery of Executive
officials – Executive Official who accepts bribe.
·
Legislator who solicits
or accepts bribe.
·
Anyone who offers bribe
to a jury.
·
Judge who solicits or
receives bribe.
·
Anyone who Gives or
offers to bribe the witness.
·
Extortion.
·
Identity Theft.
[The driver shouldn’t have committed any of these
acts in the previous 7 years]
13. In an ideal scenario the TNC must have some
way of verifying that the person who is registered is the actual person driving
the vehicle i.e. face recognition, or something like that [ This is not required
by CPUC, but makes for an interesting question in the deposition or discovery
to hold the TNC negligent]
14. Though there is no such specific law but the
TNC should take care that the driver does not drive a vehicle for more than a reasonable
number of hours. [To back this up rely on Federal Motor Safety Driving
Act. Under this Act it has been established that a drowsy transportation driver
is as dangerous as a drunk driver.]
·
Basic Concepts:
· TNC (Transportation Network Company) and TCP:
A TNC is Defined in Detail in PUC (Public Utility Code) Section
5431(c)[7].
[M] A TCP is not defined under the PUC. This term was used before TNC
came into picture. In Simple terms a TNC means a company which provides
transportation service for compensation using an online application or platform
which connects the passenger and the driver using a personal vehicle. A TCP charters a vehicle, on a prearranged
basis, for the exclusive use of an individual or group. The definition of TCP did not use the term
“personal vehicles’’. Unlike a TNC company, a TCP company owns the vehicle.
· Professional Driver v. “Gig Worker”.
Compared
to a professional driver, a gig worker works at his own convenience. The lines
between commercial drivers and personal drivers has blurred.
1.
TNC Driver: is defined under PUC, Section 5431(a)[8]:
Uses an online platform to connect to a passenger.
2.
TNC Rider : Uses a digital network to connect with a TNC driver, this also
includes the passengers.
·
Difference between a TCP
certificate and a TCP permit?[9]
The law provides three types of certificates
and three types of permits. These operating authorities and the services they
authorize are:
i. Class
A certificate - Charter service between any points in the state; round-trip
sightseeing service.
ii. Class
B certificate - Charter service between any point within a radius of 125 air
miles of the carrier's home terminal to any other point in the state. (Per
federal law, the mileage limitation may not apply to transportation provided in
vehicles that seat more than ten, including the driver.)
iii. Class
C certificate - Transportation services incidental to commercial balloon
operations, commercial river rafting or skiing.
iv. "P"
permit - Charter services using only vehicles under 15-passenger seating
capacity.
v. "S"
permit - Round-trip sightseeing services.
vi. "Z"
permit - Specialized services not offered to the general public, namely,
transportation incidental to another business; transportation under contract
with industrial and business firms, governmental agencies, and private schools;
and transportation of agricultural workers to and from farms.
·
Naming the Correct Defendants:
1.
The driver is always one of the Defendant in such cases.
2.
Lyft:
A. Entities under Lyft:
a)
Lyft, Inc.: The commercial liability insurer of Lyft is Indian Harbor
Insurance Company
b)
Zimride Inc.: Zimride will indefinitely
suspend its service from December 31, 2020[10]
B.
Correct Corporate defendant:
Lyft,
Inc.: The commercial liability insurer of Lyft is Indian Harbor Insurance
Company.
-----------------------------------------------------------------------
3.
Uber:
A. Entities under Uber:
a)
Uber Technologies, Inc.: Parent Company
b)
Uber America: Subsidiary of Uber Technologies Inc.
c)
Uber America Technologies Corp: Subsidiary of Uber Technologies Inc.
d)
Rasier/ Rasier CA-LLC: As per Uber Rasier was the Operator of the Transportation
business, they said this because Rasier had no assets, no employees, no
business.
e)
Rennpferd: This was Uber’s shell company used to provide TCP facilities.
B. Correct corporate defendant:
·
Defendants before February 2019:
1.
Uber Technologies, Inc.
2.
Rasier, LLC
3.
Rasier-CA, LLC
·
Defendants after February 2019:
Uber Technologies, Inc.
Service of Process:
1.
As per Uber website:
“Our registered agent will accept service only if the entity to whom the
document is directed matches the name of the entity registered with the Secretary
of State (e.g. “Uber Technologies, Inc. or “Rasier,LLC”) and our agent is
authorized to accept service on behalf of that entity.”
2.
Their agent of Process is:
CT
Corporation System
818
West Seventh Street
Suite
930
Los
Angeles, California 90017
·
Change in Legal position behind naming of Corporate Defendants:
1.
Before April 2018 the legal position was that Raiser CA-LLC was the TNC
Permit holder.
2.
The CPUC in an order dated April 26, 2018[11]
stated that Uber Technologies, Inc. must register itself as both a TNC and a
TCP with the Commission. (I have attached this order to the email and uploaded
in my folder on the dropbox.)
3.
The commercial liability insurer of Uber Technologies, Inc is Bluehill
Insurance.
4.
HIGHER INSURANCE COVERAGE:
a)
As per Order 115G[12]
The following services are identified as TNC and TCP
Uber
Application
|
Vehicle Class |
Offered as TNC |
Offered as TCP |
|
UberX |
Yes |
Yes |
|
UberXL |
Yes |
Yes |
|
UberSELECT/UberPLUS |
Yes |
Yes |
|
UberBLACK |
No |
Yes |
|
UberSUV |
No |
Yes |
|
UberLUX |
No |
Yes |
b)
If a service provider is considered both as a TCP
and a TNC,
then it will have a higher insurance coverage.
c)
If the client is going after the TNC Company then the demand should be
sent to the TNC’s Commercial Liability Insurer.
5.
IMPORTANT:
a)
If you are riding in an Uber Lux Or Uber XL make sure to see if they had
a TCP Permit, if they have the permit they are functioning in two capacities,
i.e. both as a TCR and a TCP.
b)
If a driver was not logged in to the Lyft or Uber at the time of the
incident, then only his the driver’s personal policy will apply.
· The Three Rideshare Phases:
·
Phase one:
When the driver logs in to the app either on
his phone or any other gadget in the vehicle, the Driver’s personal policy does
not apply. This is phase one. At this point the driver has logged in and is just
sitting in the car, without accepting a ride. In this case the minimum
insurance coverage the TNC should have is governed by the provision in PUC
Section 5433(c)[13]
·
Phase Two:
Driver
is on way to accepted pre-arranged ride: In this case the minimum insurance
coverage the TNC should have is governed by the provision in PUC Section
5433(b)[14].
·
Phase Three:
a)
Pre-arranged ride in progress: From the moment the rider enters the vehicle
until the rider exits vehicle or driver completes transaction whichever is
later.
b)
In this case the minimum insurance coverage the TNC should have is
governed by the provision in PUC Section 5433(b)[15],
and the UI/UM coverage is as per PUC Section 5433(b)(2)[16]
·
Applicable Law:
1. CPUC
(California Public Utility Commission) regulates TNCs: CPUC can make and
govern laws with regards to the TNCs
2.
PUC’s (Public
Utility Code) Chapter 8 – Charter Party Carriers of Passengers Section 5351-5450
governs them. TNC specifically
come under Article 7 – [PUC Sections 5430-5450][17]
3. To
Look into TNC Permits issued click on the link: https://www.cpuc.ca.gov/tncpermitsissued/
·
Important information to be provided in TNC
Application form:
Link
to download TNC Application form: https://www.cpuc.ca.gov/uploadedFiles/CPUC_Public_Website/Content/Licensing/Transportation_Network_Companies/PL739-TNC_TNCApplicationForm.pdf
Please look at this checklist in it, can be
very useful in framing deposition questions.
·
Reporting Requirements:
“Uber by its name alone is selling a type of car service. Because Uber
is profiting from this service it should also be responsible if the driver is
negligent or not applying Uber safe practices” [pp.16-17]
2.
As per the Decision 13-09-045 (pp. 30-33), the annual report must
include the following information:
A.
Number of drivers found to have committed violation and/or suspended.
B.
List of zero tolerance complaints and outcome of investigation of
complaints.
C.
List of each accident or incident involving TNC driver.
D.
In case of incident or accident;
amount or compensation paid to any party, and total number of incidents during
the year.
E.
In case of any incident or accident; The report must include date and
time of incident, amount paid by driver’s insurance, TNC’s insurance, or other
source. [Regulatory Requirement (k)]
F.
Average and mean number of hours each TNC driver spent driving for the
TNC. [Regulatory Requirement (l)]
3.
As per the Decision 16-04-041, the report must also include the
following information:
A.
Identification of TNC drivers suspended or deactivated for reasons
relating to safety and/or consumer protection, including but not limited to:
a)
Violation of zero-tolerance policy.
b)
Assaulting a passenger or any member of the public while providing TNC
services.
c)
Threatening a passenger or harassing any member of the public while
providing TNC services.
d)
Soliciting business that is separate from those arranged through TNC
app.
4.
As per footnote No. 42 to the Decision 13-09-45 these reports were
confidential and were not available to the public.
However, by the Decision 20-03-014 foot note 42 has been deleted. The reports
from March onwards are available to the public at large. However, this decision is not retroactive so you can only start
requesting records starting September 2019, for any record requested prior to
this date the Public Utility Commission is rejecting them.
To obtain these reports
¯ Do a California Public Records Request.
¯ The Link to make the request:
https://publicrecords.cpuc.ca.gov/requests/new
·
Determining the liability of the TNC:
The Liability of the TNC comes into picture
from reading of:
1.
The Section 5354 of PUC,
2.
Secci v. United Independent Taxi Driver (2017) 8 Cal.App.5th 846[18],
3.
Through the definition of “Agent” under the Californian
Law.
· Ascertaining ‘whether a driver is an
independent contractor or an employee:
I.
Assembly Bill No.5
2.
The Assembly Bill No.5 provides that a person providing labor or
services for remuneration shall be considered an employee rather than an
independent contractor unless the hiring entity demonstrates that:
a) The person is free from the control and
direction of the hiring entity in connection with the performance of the work
b) The person performs work that is outside the
usual course of the hiring entity’s business; and
c)
The person is customarily engaged in an independently established trade,
occupation, or business.
II.
Caselaws
1.
Caselaw: S.G. Borello & Sons, Inc v. Dept of Industrial relations (1989) 48 Cal.3d 341[19]
2. Caselaw: Doe v. Uber Techs., Inc. (2016) 184, F. Supp. 3D 774 [ I have
attached a copy of this judgment to the email and also uploaded it in my
folder]
3.
The standard of determining who is an employee is in the Jury
Instruction No. 3701.
4.
Under Labor Code in California the presumption is that an employer,
employee relationship exists.
5.
Caselaw: Dynamex Operations West, Inc. v. Superior
Court of Los Angeles County (2018) 4 Cal. 5th 903[20]
6.
The Dynamex Judgement established the “ÄBC Test”:
· This test is the appropriate standard for
determining whether under the state wage and hour law, a worker is an employee
under Industrial Welfare Commission and Labor Code, or an independent
contractor outside the scope of those laws.
·
Under the ABC Test, a worker is presumed to be an employee and the
burden of demonstrating their independent contractor status is placed squarely on
the shoulder of the hiring company.
· To be classified as an independent
contractor, the worker must as per “A” of ABC test: Whether the worker is
free from the control and direction of the hiring entity in the performance of
the work and in fact.
· To be classified as an independent
contractor, the worker must as per “B” of ABC test: Whether the worker is performing work that is outside the usual course
of the hiring entity’s business.
· To be classified as an independent
contractor, the worker must as per “C” of ABC test: Whether the worker is customarily engaged in an independently
established trade, occupation, or business of the same nature as the work
performed for the hiring entity.
· Factors that show that a worker is an independent
business or trade:
a) Separate office or business location.
b) Business listing in the Telephone directory.
c) Owns equipment needed to perform the service.
d) Employs assistance.
e) Has a financial investment in the business
and the ability to incur a loss.
f) Has own liability or workers compensation
insurance.
g) Performs services for more than one unrelated
hiring firm at the same time.
h) Is paid by the job rather than the hour.
7.
Other Cases to keep a track of in light of Dynamex precedent:
a)
Verhines v. Uber Techs., Inc. USDC N.D. Cal., Case No. 3:19-cv-06462. [This
case is sub judice[21]]
b)
Colopy v. Uber Techs., Inc. USDC N.D. Cal., Case No. 3:19-cv-06462.
III.
Latest Developments Post Assembly Bill No.5
1. Uber’s Project Luigi: Uber started a companywide initiative to change Uber’s App for
California drivers. This includes ability to see estimated fares up front and
the ability to reject a trip without the penalty.
Important Article on Uber’s project Luigi to
project its case against Assesment Bill No.5: https://www.washingtonpost.com/technology/2020/01/06/ubers-secret-project-bolster-its-case-against-ab-californias-gig-worker-law/
2. December 19, 2019: CPUC asks for briefing on
applicability of AB5 on TNC’s
3. December 30, 2019: Uber and Postmates file
lawsuits to halt AB5.
4. December 2019/January2020: Uber starts
changing features to allow Drivers to: Increase fares in 10% increments, up to
5X base rates; Decrease price below base rate and opt out of surge pricing; See
pickup, trip time, distance, destination and fare upfront, before accepting the
ride, accept only the rides that they want [ All this is being done say that the drivers are not the
employees]
5. Preliminary Injunction against implementation
of AB5 has been denied.
6. In an attempt to work around AB5 Uber, Lyft
and DoorDash have each contributed $30,000,000 towards The California
App-Based Drivers Regulation Initiative.
·
Protective Orders:
1.
The TNCs use “Telematics” to track their drivers and
passengers. The Telematics sends the following information to a centralized
computer:
a)
Speed.
b)
Distance driven
c)
Location of vehicle
d)
Sudden changes in speed
e)
Time of day the vehicle is travelling
f)
Sudden acceleration and braking
g)
Phone handling, hand-held calling
h)
Hands free calling
i)
Etc.
2.
The TNC will make every effort so that you won’t get that information.
3.
Uber/Lyft will only agree to provide the information collected through
“Telematics” if you sign their lengthy Protective Order.
4. Don’t sign the Protective Order before you
read it: Never give the Defendants Carte-blanche authority[22]
to define what is confidential. Instead insist on the definition as per Civil
Code Section 3426.1[23].
The Confidentiality definition under Uber is very wide as they want every piece
of evidence to be covered by this protective order. Look at the language on
these protective orders and argue them. You can refuse to sign the protective
order, but in that case for every document you want to get, you will have to
file a Motion to Compel. The information you can get is a Gold Mine and
it is worth the effort. In addition to this also read the article: Trade Secret Protection
·
Miscellaneous:
1. If a TNC driver was using a rented vehicle, you can also make the rental
company a defendant for negligently entrusting their vehicle. But it is not a
good idea cause the TNC can use this to their advantage, and plead they are not
liable.
2. You can opt out of Arbitration with Lyft if you request this within the
first 30 days.
3. If TNC participate in litigation they waive themselves from the remedy
of Arbitration.
4. If you are going for mediation with TNC, make sure you are actively
involved in appointment of mediator.
[1] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PUC§ionNum=5430.
[2] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PUC§ionNum=5445.2.
[3]https://www.cpuc.ca.gov/uploadedFiles/CPUC_Public_Website/Content/Licensing/Transportation_Network_Companies/PL739-TNC_TNCApplicationForm.pdf
[4] Ibid
[5] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PUC§ionNum=5445.2.
[6] Ibid
[7] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PUC§ionNum=5431.
[8] Ibid
[13] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PUC§ionNum=5433.
[14] Ibid.
[15] Ibid.
[16] Ibid.
[17] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=5430.&lawCode=PUC
[22] carte blanche - complete freedom or authority to
act. authority, potency, authorization, authorisation, say-so,
dominance - the power or right to give orders or make decisions; "he has
the authority to issue warrants"; "deputies are
given authorization to make arrests"; "a place of potency in the
state"
