Law Blog

In the wake of the COVID-19 pandemic, Sherwood Law Group continues to navigate new and emerging legal issues. One of those issues include the increased accidents involving delivery and ride share drivers. Today’s article will focus on personal injury accidents and specifically automobile or trucking accidents with a food service, ride share, or other delivery drivers(s) from the increasingly used delivery applications in Covid 19.  Further, we focus on the driver/delivering employee and his or her rights in a slip, trip, and fall or other accident during the course of the employee’s employment when making a delivery and how it relates to worker’s compensation and third-party personal injury.  

In recent years delivery services have become quite popular throughout the country and world. In the wake of the COVID-19 pandemic, delivery services such as Door Dash, Grub Hub, Postmates, Instacart, Lyft, Amazon, and Uber Eats have significantly increased in demand and presence and have become an almost essential part of the economy. In addition to food delivery, groceries, ride share, package delivery, and other services offering families the opportunity to quarantine/shelter in place, delivery services are now evolving to aid small businesses, restaurants, and local fast food companies to remain in business during the pandemic. Increased demand equals increased accidents and risks both on the road and during delivery. So, what happens when a delivery or ride share driver for one of these many services finds themself in an auto/trucking accident or are injured in any other manner when they are in the process of making a delivery? More importantly who is liable for potential injuries or losses for those injuries as a result of the auto/trucking accident or other injury in the course of making a delivery?

Most delivery, ride share, and food service companies classify their drivers as independent contractors.  Under Illinois law, independent contractors are not necessarily considered employees.  However, in certain circumstances, the driver could be deemed an employee, despite the delivery service alleging or considering the driver an independent contractor, giving rise to Workers’ Compensation coverage for the injured delivery driver. The goal of deeming a driver an independent contractor from the company/employers’ perspective is to attempt to absolve the company/employer in question of any liability for the action of the driver, and to limit or address recovery only from the driver’s insurance company as opposed to the delivery service the for which the  driver works.  Thus, the concern with this scenario from a personal injury perspective is often times whether or not the driver has valid and active underlying insurance.

When it comes to valid insurance as a driver, it is of critical importance to understand that every auto policy has a number of different coverage components. One of these components covers liability for the damages the driver would be held responsible to a third party (liability) while another component is for damage to the driver’s vehicle (property damage) if it is damaged in an accident. As a driver for either a ride-share, general delivery service, or food delivery service company, each policy may have an exclusion in the personal auto policy resulting in the driver not being covered. Thus, before operating a vehicle as a delivery driver, the driver should ensure and clarify his/her individual insurance policy has coverage for an accident while under the delivery application. If there is an exclusion the driver should ensure there is coverage by the company for the vehicle when operating for and under the delivery application.

Thus, if you are injured in a personal injury accident and the Defendant or at fault party was operating a vehicle during or in the course of a delivery or otherwise under a delivery or ride share service application, you may be entitled to compensation under either the individual driver’s insurance policy and/or the policy for the employer/delivery/rideshare application. The key to coverage may rely on the delivery application and whether the driver was in the course of a ride share or delivery. Any third-party witnesses to the accident are also crucial to substantiate employer liability. Regardless all coverages should be put on notice and explored in any accident involving a ride share, delivery, or other food service delivery application driver.

Secondly, if you are the employee and driver and you are injured in an auto, trucking, slip, trip, fall or other work injury during the course of employment there may be both workers’ compensation benefits and third-party personal injury benefits available in recovery.  As discussed previously, just because the delivery service or ride share service (or any other employer) deems an injured driver an independent contractor, the Illinois Workers’ Compensation Act may consider the driver an employee of the delivery or ride share service an employee for the purpose of workers’ compensation benefits.  What must be assessed is what the relationship between the parties is, and whether the employment of the driver/worker gives rise to an employer/employee relationship.  If there is an employer/employee relationship, the Worker’s Compensation Act applies, and the injured driver/worker is covered, and the employer is liable for the injuries sustained in the accident.  

These cases are often fact specific, meaning there is no hard and fast rule to establishing the employer/employee relationship.  Basically, to prove an injured worker/driver is an employee depends on how much direction and control the employer exerts over the injured worker or driver.  Many people and many employers presume if they issue a 1099 for tax purposes, or the employer has the employee sign an independent contractor agreement, the worker is an independent contractor, and the employer can avoid liability.   This is not necessarily true.  These are just factors in establishing whether there is an employer/employee relationship.  There are many factors to be considered in assessing the direction and control.  These factors must be viewed on a continuum, with one end of the continuum deeming the injured driver/worker strictly an independent contractor, and the other end of the continuum deeming the injured driver/worker an employee.  Generally, the more direction and control exhibited by the employer over the employee, the more likely the driver/worker will be deemed an employee of the company where he or she was injured, giving rise to coverage of the injured driver/worker under Illinois workers’ compensation law.  

It is crucial to have an attorney assess this relationship immediately because unlike the previous scenario discussed above, the Workers’ Compensation Act covers the employee regardless of who was at fault in the accident.   Even if you are at fault in an auto accident, and as long as you, the driver/worker, is within the course of his or her employment, and an accident occurs, the driver/worker is covered under Illinois Workers’ Compensation Act.  The Workers’ Compensation Act, if applicable, provides a wealth of benefits to the injured worker, including payment of medical benefits, including access to any physician the driver/worker chooses; payment of temporary total disability benefits while the driver/worker is unable to work; and payment for the loss of use of the body part or body parts injured in the accident.  In the event an injured worker or driver cannot go back to work ever due to the accident, and is permanently and totally disabled, or suffers a reduction in earning capacity, it is possible the worker can receive lifetime benefits pursuant to the workers’ compensation laws in Illinois.  

In addition, to workers compensation if the employee is injured as a result of the negligence of a third party, there is a second case which runs concurrently with the workers’ compensation case to recover damages. This often occurs when the delivery driver slips, trips, and falls on a homeowner’s property or on commercial properties. It also occurs in car or trucking accidents where the delivery, ride share, or food service driver was not at fault in the accident, and the accident was the fault of another person or driver

If you or a loved one is injured in an accident with a ride-share or food or general delivery company, you may be entitled to a recovery and should seek the counsel of attorneys with experience in handling these particular matters. And even further, if you have been injured during the course of employment as a delivery driver you should explore all options BOTH in workers compensation and personal injury as you may have more than one viable cause of action.  Stay informed and ask questions! Contact Sherwood Law Group at 312.627.1650 or info@sherwoodlawgroup.com.