In March 2018, Philadelphian Jillian Kemenosh ordered up a car to take her from Columbus Boulevard down to her Center City home via the rideshare app Uber. A little more than halfway through the trip, her driver ran a red light at the intersection of 16th and Vine, colliding with another vehicle. The accident left her with a fractured spine, a concussion, and traumatic brain injury.
Feeling she was owed recompense due to the accident, Ms. Kemenosh decided to sue Uber, its local subsidiaries, and the driver. And that’s where she ran into trouble.
According to Uber, Ms. Kemenosh’s use of the service was subject to certain terms. One of those terms was that any individual user with a claim against Uber agreed that it should be settled within arbitration rather than in open court. (Proponents of arbitration state that this a cost effective way for all parties to come to a conclusion on the matter while critics suggest that arbitration is a way for Uber to hide the details of complaints lodged against them.)
Fortunately for her, a judge declared that because of the way that the app was structured when Ms. Kemenosh first enrolled, there was no way for Uber to prove that she had actually read the Terms of Service. Since the app did not supply a hyperlink to a separate page that outlined Uber’s terms of service, Kemenosh was not bound by them.
In her 19-page opinion, Philadelphia Common Pleas Judge Abbe F. Fletman wrote “the registration process did not properly communicate an offer to arbitrate under Pennsylvania law.” In other words, because there was no transparency to the Terms of the Agreement, nor could Uber prove that Ms. Kemenosh had seen and read them, she had not agreed to and was not bound by the clause that stated her dispute with Uber needed to be determined through arbitration.
Ms. Kemenosh’s suit is ongoing, but you best believe that Uber has updated their app to ensure that there is now a link to their Terms of Service policy as well as a check box to indicate that a new user has indeed read and agreed to these terms.
But what were to happen now if you were in an automobile accident while either riding in an Uber hired car or if you were in your own vehicle and got hit by another driver who was at the time working for Uber? The answer may be a little bit complicated and is in part informed by the company’s history, so let’s take a look at some background first.
WHAT IS UBER?
For the uninitiated, Uber is what they call a ride-share service, allowing users to hire a car to take them somewhere all through a phone app. Other users serve as drivers, payment for their time coming from a percentage of the amount that Uber charges the person hiring the car. Think of Uber as a cross between a dating service and a taxi service, matching up people who need a ride with someone willing to take them to their destination. Uber is popular with consumers, often less expensive than cab fare, and makes it easier for city residents to forgo vehicle ownership.
Since its launch in 2009, Uber has grown to become one of the most dominant companies in what is called the “gig economy,” the workforce that is made up of freelancers and short-term contractors rather than those who are employed on a more permanent basis. Currently, the app has been downloaded more than 500 million times from the Google Play app store. At the end of 2020, Uber boasted over 93 million monthly active users worldwide and makes up just over two-thirds of the ride share industry.
Uber proved so successful that it quickly spawned a number of direct imitators, most notably Lyft. Others took Uber’s basic model and applied it to other services such as grocery shopping and delivery (Instacart) and restaurant delivery (DoorDash, GrubHub). And coming full circle, Uber has established its own restaurant delivery app, UberEats.
UBER’S LAWSUIT HISTORY
But such rapid growth and popularity will almost certainly be accompanied by number of lawsuits. Many of these suits came from situations that the company did not fully anticipate and build into the policies that their drivers are supposed to adhere to.
For example, in 2016, Uber reached a settlement with the National Association of the Blind, who had brought a suit against the company for discriminating against potential customers who use service animals. In the class action suit, the NAB asserted that a number of times Uber drivers refused service to blind passengers who were accompanied by their guide dogs. Among other things, the settlement required Uber to permanently remove any driver from the service who refuses to give a ride to any user with a service animal. The settlement also required Uber to train their drivers of their obligation to pick up users with service animals.
The company has also faced multiple lawsuits over price fixing and its practice of surge pricing. As per Uber’s own site, surge pricing happens “when so many people are requesting rides that there aren’t enough cars on the road to help take them all.” Think of it as a real-time example of the basic economic model of “Supply and Demand” playing out.) Additionally, the company has also been on the receiving end of antitrust suits stemming from Uber entering into various markets while not necessarily being held accountable to laws and regulations that local traditional taxi companies are bound to.
Uber has also been on the receiving end of a number of other lawsuits that originate in alleged actions of their drivers. These range from accusations of assault and even rape to wrongful injury and death suits.
These lawsuits are intertwined with perhaps the biggest and potentially most impactful lawsuits that the company is engaged with – the suits that look at how Uber classifies the people who drive for them. Uber sees their drivers as contractors or freelancers while the drivers would like to be considered actual employees. If considered employees, Uber drivers would be eligible for certain protections including being eligible for minimum wage, overtime and expense reimbursement if they drove full time for the company.
Needless to say, if Uber were able to keep its drivers classified as contractors and not employees, they would certainly save an enormous amount of money in terms of benefits that they wouldn’t be required to shell out for as well as unemployment and disability insurance taxes they would not be required to pay.
But the biggest benefit for Uber, at least in terms of our discussion, is by having their drivers classified as contract workers and not as direct employees, Uber is giving itself a layer of insulation between themselves and anyone filing suit against them over the actions of their drivers which have led to injury or death. However, if it is proven that an Uber driver has been hired without being subjected to a full background check or without meeting the company’s full requirements, Uber customers may be at risk.
UBER DRIVER AND VEHICLE REQUIREMENTS
In an effort to promote driver and passenger safety, Uber has a list of requirements all of their drivers must meet. At minimum, Uber drivers must have a valid driver’s license and be of legal age to drive in their city, and have at least one year of licensed driving experience in the United States (three years for drivers younger than 23). Drivers must provide proof of auto insurance, and pass a background check of their driving record and criminal history.
In addition, each U.S. city where Uber operates has its own set of driver and vehicle requirements, as well as local regulations Uber drivers must adhere to. For example, in Washington, DC, Uber drivers are required to display the company decal on their vehicle while working. Uber drivers in Washington, DC and in Virginia must use vehicles 15 years old or newer; in Maryland, their vehicles must be 12 years old or newer. Vehicles must be 4-door, in good condition, with a valid inspection, and with no commercial branding displayed (other than the Uber decal). Additional requirements apply to the various Uber vehicle options in Washington, DC, such as UberX, UberXL, Uber Black, and others. In Washington DC, Uber Black and Uber Black SUV drivers must carry commercial auto insurance and drive vehicles five years old or newer.
Other local regulations surrounding bicycle and pedestrian safety, hours of service limitations, and others apply as well. Violations of any of the above regulations and requirements can amount to negligence if an Uber driver causes an accident and injures a passenger, another driver, a pedestrian, or biker.
I’VE BEEN IN AN ACCIDENT. NOW WHAT?
So, what happens if you are in a car accident involving an Uber driver, either as a passenger or while operating your own vehicle?
There are a few things you need to do right at the time of the accident and in the immediate aftermath. First, you will need to get the insurance information from not just the Uber driver but also from the driver of the other car involved in the accident. If there are witnesses at the scene, try to obtain their names and contact information.
Secondly, seek medical attention, even if you think you are fine. You may have received an injury that you don’t realize and will need to document that it is the result of the accident if it were to manifest complications later. This is especially true with traumatic brain injuries. Even if you do not lose consciousness, the impact of a rear-end, head-on, or T-bone collision can result in brain trauma. Keep a record of any and all medical care you receive as a result of the accident, as well as any time you have had to miss from work.
Finally, make sure that the accident has been reported to the police. Having the documented police report from the incident will be of help if you need to file any sort of claim later. Even if you are unsure about the severity of your injuries or the property damage, report the accident to the police so that the event will be properly documented. If possible, take down the name(s) of any officers who report to the scene.
Uber naturally requires all their drivers to carry their own insurance in accordance with state and local laws. Additionally, Uber offers a supplemental insurance policy to their drivers that covers them whenever they are logged into the Uber app and working. When this supplemental liability policy is in force, it covers up to $1,000,000 per accident for personal injury, for property damage, and uninsured or underinsured drivers.
You will need to contact both the at-fault driver’s insurance company as well as the carrier for any other driver involved in your accident. Depending on the terms of the policies, there may be compensation that you are due. However, if you are unsatisfied with the insurance companies’ response, you may need to contact a personal injury law firm to handle things for you.
When pursuing a legal case involving a big company like Uber or another ride-share service, the best way to ensure you receive proper compensation is to seek representation from a lawyer experienced with auto accident and commercial vehicle cases. Determining who bears responsibility for your medical costs, lost wages, and pain and suffering may be a complicated matter. The outcome of an Uber accident case will depend on who was at-fault for the crash; the circumstances surrounding the accident and whether or not the Uber driver was considered “on duty” at the time of the crash; the extent of the monetary and non-monetary damages; and the insurance coverages available. The right lawyer can investigate the cause of the accident, determine liability, and hold the at-fault party accountable for the suffering you have endured.
For more information visit: https://www.rhllaw.com/