The Underinsured Motorist Coverage Requirement of the Transportation Network Company Safety and Regulatory Act Does Not Apply to Food Delivery Services

Malzberg v. Josey, 473 N.J. Super. 537 (App. Div. 2022). Here is how Judge Susswein’s opinion for the Appellate Division in this case described the purely legal issue presented. “This case presents a question of first impression regarding the scope of the Transportation Network Company Safety and Regulatory Act (TNCSRA or Act), N.J.S.A. 39:5H-1 to -27. Plaintiff was injured in a motor vehicle accident while he was operating his motorcycle as an Uber Eats delivery driver. The sole legal issue raised in this appeal is whether the Act—which requires ‘transportation network companies’ (TNCs) to provide at least $1.5 million in underinsured motorist coverage — applies to food delivery services, such as Uber Eats.”

The Law Division had granted summary judgment to the defense, holding that (as Judge Susswein summarized it) “the Act applies only to the prearranged transport of persons and not to the delivery of food.” Applying de novo review, the Appellate Division affirmed, concluding that “[n]othing in the statutory text or legislative history of the TNCSRA suggests that the Legislature intended to regulate app-based food delivery services.”

The Appellate Division first had to address an argument that plaintiff’s appeal was untimely. There were multiple defendants, and separate dismissals were filed on May 4, 2020 as to one defendant, on June 29, 2020 as to another, and on May 11, 2021 as to a third defendant. Meanwhile, on January 25, 2019, the Law Division entered the summary judgment order that was the subject of plaintiff’s appeal. Plaintiff filed his notice of appeal on June 15, 2021.

Judge Susswein rejected the argument that the notice of appeal came too late. There was no final judgment, and therefore no ability to appeal as of right, until the last of the dismissals was entered on May 11, 2021. Because plaintiff filed the notice of appeal within 45 days of that date, it was timely.

On the merits, the plain language of the TNCSRA defeated plaintiff. Judge Susswein quoted the key definitions in the statute and observed that “nothing in the definition section—or any other section of the Act for that matter—refers to the delivery of food. The absence of any reference to food delivery in the definition section stands in stark contrast to the interrelated definitions that refer explicitly and repeatedly to ‘rides’ and ‘riders,’ which clearly denote the transport of human passengers.” Moreover, “[t]he absence of any reference in the definition section to any vehicles that transport goods rather than passengers supports our conclusion that the Legislature in enacting the TNCSRA was concerned only with vehicles while they are being used to transport persons.”

Finally, “[a]side from the definition section, the text of the entire Act includes only one explicit reference to services that involve the transport of something other than persons, and that reference is done in the context of explaining what transportation network companies and drivers may not do if they are to remain within the scope of the Act” (emphasis by Judge Susswein). That “confirms that freight services are governed by other applicable laws, not the TNCSRA.”

Plaintiff argued that the Act covered the transportation of food because
“[t]he definition of a transportation network driver is a person who receives connections to potential riders and related services from a transportation network company.” His contention was that “related services” included food delivery. Judge Susswein did not agree. Though every word in a statute is to be given meaning, he said, “the ‘related services’ referred to in the definition of ‘transportation network company driver are limited to services that pertain directly to ‘connections to potential riders.’” And “‘riders’ clearly refers to persons, not items.”

Finally, Judge Susswein observed that plaintiff had not cited anything in the legislative history of the Act to support his position. And regulations promulgated by the Motor Vehicle Commission reinforced the panel’s conclusion. Plaintiff argued that there was a “hole in the law” that the Appellate Division should have filled in order to benefit him. But Judge Susswein said that “it is for the Legislature, not trial or intermediate appellate courts, to fill the void to which plaintiff alludes.” He also noted that there is pending legislation to do what plaintiff sought, but the panel would not “venture an opinion on whether that pending legislation supports or undermines plaintiff’s arguments on this appeal.” Under the Act as it stands, plaintiff could not prevail.