Requires a delivery network company to ensure that, during the delivery available period, if it applies, and during the delivery service period, primary automobile liability insurance is in place that recognizes that the driver is a delivery network driver or that does not exclude coverage for use of a personal vehicle to provide deliveries.
STATE OF NEW YORK
________________________________________________________________________
6760--A
2023-2024 Regular Sessions
IN SENATE
May 9, 2023
___________
Introduced by Sen. HOYLMAN-SIGAL -- read twice and ordered printed, and
when printed to be committed to the Committee on Consumer Protection
-- recommitted to the Committee on Consumer Protection in accordance
with Senate Rule 6, sec. 8 -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
AN ACT to amend the general business law and the insurance law, in
relation to insurance requirements for third-party food delivery apps
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 391-v of the general business law, as added by
2 chapter 693 of the laws of 2021, is amended to read as follows:
3 § 391-v. Third-party food delivery agreements and insurance require-
4 ments. 1. For the purposes of this section, the following terms shall
5 have the following meanings:
6 (a) "Agreement" means a written contractual agreement between a food
7 service establishment and a third-party food delivery service authoriz-
8 ing the inclusion of the food service establishment's products on the
9 third-party food delivery platform.
10 (b) "Delivery available period" means the period when a delivery
11 network driver:
12 (i) has logged on to a digital network;
13 (ii) is available to receive requests to provide delivery services
14 from a delivery network company;
15 (iii) is operating a personal vehicle; and
16 (iv) is not providing delivery services or operating in the delivery
17 service period.
18 (c) "Delivery network company" means a corporation, partnership, sole
19 proprietorship, or other entity that operates in this state and uses a
20 digital network to connect a delivery network company customer to a
21 delivery network driver to provide delivery services.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10975-04-4
S. 6760--A 2
1 (d) "Delivery network company customer" means a person who orders
2 goods that are delivered by a delivery network driver at the direction
3 of the person.
4 (e) "Delivery network driver" means an individual who provides deliv-
5 ery services through a digital network using a personal vehicle.
6 (f) "Delivery services" means the fulfillment of delivery requests
7 made by a customer through a digital network, including the pickup of
8 any goods and the delivery of the goods to a customer by a delivery
9 network driver. Delivery services may include a series of deliveries to
10 different customers, or to different locations at the direction of a
11 customer.
12 (g)"Delivery service period" means the period:
13 (i) beginning when a delivery network driver starts operating a
14 personal vehicle en route to pick up goods for a delivery or series of
15 deliveries as documented via a digital network controlled by a delivery
16 network company;
17 (ii) continuing while the delivery network driver transports the
18 requested delivery or deliveries; and
19 (iii) ending upon delivery of the requested goods to:
20 (A) the delivery network company customer or the last delivery network
21 company customer in a series of deliveries or to a location designated
22 by the delivery network company customer or the last location so desig-
23 nated in a series of deliveries; or
24 (B) a location designated by the delivery network company, including
25 for purposes of returning the goods.
26 (h) "Digital network" means any online-enabled application, software,
27 website, or system offered or utilized by a delivery network company
28 that enables deliveries with delivery network drivers.
29 (i) "Food service establishment" means a place where food is provided
30 for individual portion service directly to the consumer whether such
31 food is provided free of charge or sold, and whether consumption occurs
32 on or off the premises or is provided from a pushcart, stand or vehicle.
33 [(c)](j) "Personal vehicle" means a motor vehicle, a limited use
34 motorcycle as defined in section one hundred twenty-one-b of the vehicle
35 and traffic law, an electric scooter as defined in section one hundred
36 fourteen-e of the vehicle and traffic law or bicycle with electric
37 assist as defined in section one hundred two-c of the vehicle and traf-
38 fic law and that is:
39 (i) used by a delivery network driver to provide delivery services;
40 and
41 (ii) owned, leased, or otherwise authorized for use by the delivery
42 network driver.
43 (k) "Third-party food delivery service" means any website, mobile
44 application or other internet service that offers or arranges for the
45 sale or delivery of food and beverages prepared by, and the same-day
46 delivery or same-day pickup of food and beverage from, a food service
47 establishment located in the state.
48 [(d)] (1) "Third-party food delivery platform" means the online or
49 mobile platform of the third-party food delivery service on which a
50 consumer can view products available for sale and place an order for a
51 food service establishment's products.
52 2. (a) A third-party food delivery service shall not list, advertise,
53 promote, or sell a food service establishment's products, or arrange for
54 the delivery of an order of such products, on a third-party food deliv-
55 ery platform without a valid agreement with the food service establish-
56 ment authorizing the inclusion of their products on such platform.
S. 6760--A 3
1 (b) An agreement executed in accordance with this section shall not
2 include a provision, clause, or covenant that requires a food service
3 establishment to indemnify a third-party food delivery service, any
4 independent contractor acting on behalf of the third-party food delivery
5 service, or any registered agent of the third-party food delivery
6 service, for any damages or harm by an act or omission occurring after
7 the food service establishment's product leaves the place of business of
8 the food service establishment. To the extent an agreement contains such
9 a provision, such provision shall be deemed void and unenforceable.
10 (c) A food service establishment included on a third-party food deliv-
11 ery platform in violation of this section shall have the right to bring
12 an action in a court of competent jurisdiction for damages, penalties as
13 set forth in this section, and injunctive relief. Such court, in its
14 discretion, may also award reasonable court costs and attorneys' fees.
15 [(d)] 3. (a) A delivery network company shall ensure that, during the
16 delivery available period, if it applies, and during the delivery
17 service period, primary automobile liability insurance is in place that
18 recognizes that the driver is a delivery network driver or that does not
19 exclude coverage for use of a personal vehicle to provide deliveries.
20 (b) During the delivery service period and delivery available period,
21 the delivery network driver, delivery network company, or any combina-
22 tion of the two shall maintain a motor vehicle liability insurance poli-
23 cy that provides the coverage required under article fifty-three of the
24 insurance law during the delivery available period and delivery service
25 period in amounts not less than:
26 (i) For bodily injury and property damage to third parties:
27 (A) fifty thousand dollars ($50,000) or the amount required under
28 paragraph one of subsection (a) of section fifty-three hundred three of
29 the insurance law, whichever is greater, for all damages arising out of
30 bodily injury sustained by any one person as a result of any one acci-
31 dent;
32 (B) one hundred thousand dollars ($100,000) or the amount required
33 under paragraph one of subsection (a) of section fifty-three hundred
34 three of the insurance law, whichever is greater, for all damages aris-
35 ing out of bodily injury sustained by all persons as a result of any
36 one accident; and
37 (C) twenty-five thousand dollars ($25,000) or the amount required
38 under paragraph two of subsection (a) of section fifty-three hundred
39 three of the insurance law, whichever is greater, for all damages aris-
40 ing out of damage to or destruction of property as a result of any one
41 accident.
42 (ii) For basic reparation benefits, the amount set forth in paragraphs
43 three and four of subsection (a) of section fifty-three hundred three of
44 the insurance law.
45 (c) If the insurance coverage maintained by a delivery network driver
46 in accordance with paragraphs (a) and (b) of this subdivision has lapsed
47 or does not provide the required coverage, insurance maintained by the
48 delivery network company shall:
49 (i) provide the coverage required by paragraphs (a) and (b) of this
50 subdivision beginning with the first dollar of a claim; and
51 (ii) have the duty to defend a claim made under the coverage provided
52 under paragraph (b) of this subdivision.
53 (d) Coverage under an automobile insurance policy maintained by the
54 delivery network company shall not be dependent upon another motor vehi-
55 cle liability insurer first denying a claim, nor shall another motor
56 vehicle liability insurance policy be required to first deny a claim.
S. 6760--A 4
1 (e) Insurance coverage required by this section may be obtained from
2 an insurance company duly licensed to transact business under the insur-
3 ance laws of this state or by an eligible excess lines broker licensed
4 under section two thousand one hundred five of the insurance law.
5 (f) The coverage required pursuant to paragraphs (a) and (b) of this
6 subdivision shall be deemed to meet the requirements for financial
7 responsibility under the vehicle and traffic law.
8 (g) A delivery network driver shall carry proof of insurance required
9 pursuant to paragraphs (a) and (b) of this subdivision at all times
10 while using a personal vehicle in connection with a digital network. In
11 the event of an accident, a delivery network driver shall, upon request,
12 provide insurance coverage information to the directly interested
13 parties, automobile insurers, and investigating law enforcement offi-
14 cers. The insurance coverage information may be displayed or provided
15 in either paper or electronic form as provided by regulation of the
16 commissioner of motor vehicles. A delivery network driver shall, upon
17 request, disclose to the directly interested parties, automobile insur-
18 ers, and investigating law enforcement officers whether the driver was
19 operating during the delivery available period or the delivery service
20 period at the time of the accident.
21 (h) In a claims coverage investigation, a delivery network company or
22 its insurer shall cooperate with all insurers that are involved in the
23 claims coverage investigation to facilitate the exchange of information
24 and shall immediately provide upon request by directly involved parties
25 or any insurer the precise times that a delivery network driver began
26 and ended the delivery available period and/or the delivery service
27 period on the delivery network company's digital network in the twelve-
28 hour period immediately preceding the accident and in the twelve-hour
29 period immediately following the accident. Insurers potentially provid-
30 ing the coverage required by this subdivision shall disclose upon
31 request by any other such insurer involved in the particular claim, the
32 applicable coverages, exclusions, and limits provided under any automo-
33 bile insurance maintained in order to satisfy the requirements of this
34 subdivision.
35 (i) The insurer or insurers of a delivery network company providing
36 coverage under paragraphs (a) and (b) of this subdivision shall assume
37 primary liability for a claim when a dispute exists as to when the
38 delivery available period and/or the delivery service period began or
39 ended and the delivery network company does not have available, did not
40 retain, or fails to provide the information required by paragraph (h) of
41 this subdivision.
42 4. (a) A delivery network company shall not be deemed to control,
43 direct, or manage a personal vehicle or delivery network driver that
44 connects to the company's digital network, except where agreed to by
45 written contract.
46 (b) A delivery network company shall not permit a delivery network
47 driver to engage in delivery services on the company's digital network
48 until the company discloses in writing to the driver:
49 (i) the insurance coverage, including the types of coverage and the
50 limits for each coverage, that the company provides while the driver
51 uses a personal vehicle in connection with the company's digital
52 network; and
53 (ii) that the driver's own motor vehicle liability insurance policy
54 might not provide any coverage during a delivery available period, if
55 applicable, or a delivery service period.
S. 6760--A 5
1 5. (a) Nothing in subdivision three or four of this section shall be
2 construed to:
3 (i) invalidate or limit an exclusion contained in a motor vehicle
4 liability insurance policy, including any policy in use or approved for
5 use that excludes coverage for motor vehicles used for delivery, or for
6 any business use; or
7 (ii) invalidate, limit, or restrict an insurer's ability under exist-
8 ing law to underwrite any insurance policy, or cancel and/or non-renew
9 policies.
10 (b) Nothing in subdivision three or four of this section limits the
11 scope of federal or state law regarding the delivery or transport of
12 goods. Deliveries made pursuant to this section that are subject to
13 federal or state law regarding the delivery or transport of goods shall
14 also comply with the requirements of those laws. In the event of a
15 conflict between subdivision three or four of this section and another
16 law dealing with the delivery or transport of goods, the other law
17 prevails.
18 6. Any person that violates any provision of this section shall be
19 subject to a civil penalty of up to one thousand dollars per violation,
20 except that the third-party food delivery service shall be the sole
21 liable party for violations of subdivision three of this section. Each
22 day a food service establishment is included on a third-party food
23 delivery platform and each food service establishment included on a
24 third-party food delivery platform shall be considered a separate
25 violation. Each delivery begun or completed without the financial
26 responsibility requirements required by subdivision three of this
27 section shall be considered a separate violation.
28 § 2. The insurance law is amended by adding a new section 3459-a to
29 read as follows:
30 § 3459-a. Delivery service exclusions for motor vehicle insurance
31 policies. (a) The definitions set forth in section three hundred nine-
32 ty-one-v of the general business law shall apply to this section.
33 (b) Notwithstanding any other provision of law to the contrary, an
34 authorized insurer that writes motor vehicle liability insurance in the
35 state may exclude any and all coverage and the duty to defend or indem-
36 nify for any injury or loss that occurs during the delivery available
37 period and the delivery service period, including but not limited to:
38 (1) liability coverage for bodily injury and property damage;
39 (2) coverage provided pursuant to article fifty-one of this chapter;
40 (3) uninsured motorist coverage;
41 (4) supplementary uninsured/underinsured motorist coverage; and
42 (5) motor vehicle physical damage coverage as described in paragraph
43 nineteen of subsection (a) of section one thousand one hundred thirteen
44 of this chapter.
45 (c) Nothing in this article shall invalidate or limit an exclusion
46 contained in a motor vehicle insurance policy, including any insurance
47 policy in use or approved for use that shall exclude coverage for motor
48 vehicles made available for rent, sharing, hire or any business use.
49 (d) Nothing in this section invalidates or limits an exclusion
50 contained in a motor vehicle liability insurance policy, including any
51 insurance policy in use or approved for use that excludes coverage for
52 motor vehicles used for delivery or for any business use.
53 (e) Nothing in this section invalidates, limits or restricts an insur-
54 er's ability under existing law to underwrite any insurance policy.
55 Nothing in this section invalidates, limits or restricts an insurer's
56 ability under existing law to cancel and non-renew policies.
S. 6760--A 6
1 (f) A motor vehicle liability insurer that defends or indemnifies a
2 claim against a delivery network driver that is excluded under the terms
3 of its policy shall have the right to seek recovery against the insurer
4 providing coverage under paragraphs(a) and (b) of subdivision three of
5 section three hundred ninety-one-v of the general business law if the
6 claim:
7 (i) occurs during the delivery available period or the delivery
8 service period; and
9 (ii) is excluded under the terms of its policy.
10 § 3. This act shall take effect one year after it shall have become a
11 law.
