SCOTT C. MALZBERG v. CAREN L. JOSEY (L-7858-17, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2883-20
SCOTT C. MALZBERG, a/k/a
SCOTT MALZBERG,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
September 27, 2022
APPELLATE DIVISION
v.
CAREN L. JOSEY, JAMES
RIVER INSURANCE COMPANY,
PORTIER, LLC, and RIDER
INSURANCE COMPANY,
Defendant-Respondents.
______________________________
Submitted September 13, 2022 – Decided September 27, 2022
Before Judges Sumners, Geiger, and Susswein.
On appeal from the Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-7858-17.
Davis, Saperstein & Salomon, PC, attorneys for
appellant (Grace E. Robol, of counsel and on the
briefs).
Goetz, Schenker, Blee & Wiederhorn, attorneys for
respondent James River Insurance Company (Daniel
Szep, on the brief).
The opinion of the court was delivered by
SUSSWEIN, J.A.D.
Plaintiff Scott C. Malzberg appeals from the January 25, 2019 Law
Division order granting summary judgment in favor of defendant James River
Insurance Company (James River), dismissing plaintiff's claim for
underinsured motorist coverage. 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.
In granting summary judgment dismissal, Judge Stephen L. Petrillo held
that the Act only regulates companies that use a digital network such as a
mobile phone application (app) to connect a "rider" to a "prearranged ride."
See N.J.S.A. 39:5H-2. Judge Petrillo concluded that the Act applies only to
the prearranged transport of persons and not to the delivery of food. We agree.
Nothing in the statutory text or legislative history of the TNCSRA suggests
that the Legislature intended to regulate app-based food delivery services.
A-2883-20
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I.
We discern the following pertinent facts and procedural history from the
record. On June 30, 2017, plaintiff enrolled with defendant Portier, LLC
(Portier) to use his personal vehicle—a motorcycle—to deliver food. Portier
generates leads to independent food delivery service providers—the drivers—
through a mobile phone application known as Uber Eats. 1 The Uber Eats app
allows food delivery service providers and restaurants to connect with each
other so that they can fulfill orders placed by consumers.
Plaintiff was required to sign a "Technology Services Agreement" with
Portier. Section 8.3 of that agreement provides:
You understand and acknowledge that your own
insurance policy (e.g., automobile or other liability
insurance policy) may not afford liability,
comprehensive, collision, medical payments, personal
injury protection, uninsured motorist, underinsured
motorist, damage to property in your care, custody and
control, or other coverage for the Delivery Services
you provide pursuant to this Agreement. If you have
1
Judge Petrillo noted that Portier is a:
[W]holly-owned subsidiary of Uber Technologies,
hereinafter referred to as Uber, [which] provides lead
generation services to independent providers of food
delivery services through Uber's mobile application
known as Uber Eats. That is, essentially, a spin-off of
the ride sharing company which uses Uber's existing
fleet of independent drivers to deliver food from
participating restaurants directly to consumers.
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any questions or concerns about the scope or
applicability of your own insurance coverage, it is
your responsibility, not that of [Portier], to resolve
them with your insurer(s).
Section 8.4 of the Services Technology Agreement further provides that:
[Portier] may maintain during the term of this
Agreement insurance related to your provision of
Delivery Services as determined by [Portier] in its
reasonable discretion, provided that [Portier] and its
Affiliates are not required to provide you with any
specific insurance coverage for any loss to your
Transportation Method or injury to you.
On August 17, 2017, plaintiff was in the process of making a food
delivery for Uber Eats when a vehicle driven by defendant Caren L. Josey
(Josey) made a left turn onto the Route 17 entrance ramp in Hackensack and
collided with plaintiff's motorcycle. Plaintiff was thrown from the motorcycle
and sustained significant injuries requiring multiple surgeries.
Josey was insured by CURE Auto Insurance with bodily injury liability
coverage limited to $15,000 per person and $30,000 per accident. Plaintiff's
injuries exceeded the limits of Josey's personal auto insurance policy.
Portier had procured a business auto insurance policy from James River.
That policy provides in pertinent part, "[w]e will pay all sums an 'insured'
legally must pay as damages because of 'bodily injury' or 'property damage' to
which this insurance applies, caused by an 'accident' and resulting from the
ownership, maintenance or use of a covered 'auto.'" The James River policy
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defines an "insured" to include "Delivery Drivers" who have entered into a
contract to use the "UberPartner Application" and who have logged into the
"UberPartner Application." Importantly, however, the James River policy
does not provide underinsured motorist benefits.
On November 6, 2017, plaintiff filed a complaint against Josey claiming
negligence. On December 28, 2017, plaintiff filed an amended complaint,
adding James River as a defendant and seeking coverage from James River for
plaintiff's injuries that exceeded the limits of Josey's personal auto insurance
policy. On February 8, 2018, plaintiff filed a second amended complaint,
adding Portier as a defendant. Plaintiff alleged in the second amended
complaint that, at the time of the accident, he was "employed and/or insured
with [Portier], the insured of defendant [James River]" and claimed that he is
"entitled to underinsured motorist benefits from defendant [James River]." On
April 16, 2018, plaintiff filed a third amended complaint, adding Rider
Insurance Company as a defendant. 2
2
The complaint against Rider Insurance Company has no bearing on the
substantive issue presented in this appeal and is pertinent only insofar as the
date of its dismissal with prejudice determines when all complaints in the
matter were finally resolved. See infra Section II (discussing James River's
contention that the present appeal was not timely filed and should not be
heard).
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On October 12, 2018, the complaint against Portier was dismissed
without prejudice and that matter was compelled to arbitration. The
complaints against the other defendants were not affected by the order to
compel arbitration.
Following the exchange of discovery, James River filed a motion for
summary judgment seeking dismissal of the complaint against it with
prejudice. On January 25, 2019, Judge Petrillo convened oral argument on
James River's motion for summary judgment. At the conclusion of the
hearing, the judge rendered an opinion on the record and issued an order
granting James River's motion for summary judgment and dismissing the
complaint with prejudice as to all claims against James River. The January 25,
2019 order is the subject of the present appeal.
On May 4, 2020, a stipulation of dismissal with prejudice was filed with
respect to the complaint against Josey. A stipulation of dismissal with
prejudice was filed as to defendant Rider Insurance Company on June 29,
2020. The complaint against Portier—which had been dismissed without
prejudice when that matter was compelled to arbitration—was reinstated and
restored to the active trial calendar by order dated March 10, 2021. A
stipulation of dismissal with prejudice as to Portier was filed on May 11, 2021.
The present appeal was filed on June 15, 2021.
A-2883-20
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Plaintiff raises the following contention for our consideration:
POINT I:
THE TRIAL COURT IMPROPERLY GRANTED
THE SUMMARY JUDGMENT MOTION.
II.
We first address James River's contention that plaintiff's appeal was filed
untimely pursuant to Rule 2:4-1(a), which generally requires that appeals from
final judgments be filed within forty-five days of their entry. A judgment is
deemed to be final when all claims as to all parties are resolved. See R. 2:2-
3(b) ("Final judgments of a court, for appeal purposes, are judgments that
finally resolve all issues as to all parties."). James River argues that the forty -
five-day deadline for filing this appeal started to run when the stipulation of
dismissal with prejudice was filed as to defendant Rider Insurance Company
on June 29, 2020. We disagree; the forty-five-day deadline started to run
when the claims against Porter were resolved.
Rule 2:2-3(a) governs the right to appeal from final judgments and
delineates various orders that, although interlocutory, are deemed final for
purposes of filing an appeal as of right. GMAC v. Pittella, 205 N.J. 572, 583
(2011). In Pittella, our Supreme Court addressed "whether an order
compelling arbitration as to one or more, but not all, claims and parties is final
for purposes of appeal." 205 N.J. at 574. The Court exercised its rulemaking
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authority to amend Rule 2:2-3(a) to add orders compelling arbitration to the
list of interlocutory orders that are deemed final for purposes of appeal. Id. at
586. To dispel any doubts about the need to seek timely appellate review of an
order compelling arbitration, the Court admonished, "[b]ecause the order shall
be deemed final, a timely appeal on the issue must be taken then or not at all."
Ibid. The Court reasoned that "[a] party cannot await the results of compelled
arbitration and gamble on the results" before filing an appeal. Ibid.The appeal before us is distinguishable from the circumstances in
Pittella. In that case, Pittella appealed from the order compelling arbitration.
In contrast, in the present matter, the subject matter of the appeal brought by
plaintiff is not related to the October 12, 2018 order to compel arbitration of
plaintiff's claim against Portier. Rather, plaintiff appeals from the order
granting summary judgment dismissal in favor of James River. We agree with
plaintiff that, in this case, the claims against all parties were not finally
resolved for purposes of Rule 2:2-3(a) until the complaint against Portier was
resolved through the stipulation of dismissal entered on May 11, 2021. Thus,
the present notice of appeal, filed on June 15, 2021, was timely filed within
forty-five days of that milestone.
A-2883-20
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III.
We turn next to the novel substantive issue plaintiff raises. Rule 4:46-
2(c) directs that summary judgment shall be granted "forthwith if the
pleadings, depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to
any material fact challenged and that the moving party is entitled to a
judgment or order as a matter of law." An appellate court employs that same
standard and reviews the Law Division decision de novo. Branch v. Cream-O-
Land Dairy, 244 N.J. 567, 582 (2021). No special deference is afforded to the
trial court's interpretations of the law and legal consequences that flow from
established facts. Invs. Bank v. Torres, 243 N.J. 25, 47 (2020) (citing Templo
Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,
199 (2016)). We emphasize that, in this instance, there is no dispute as to the
relevant facts. Rather, this case hinges on an interpretation of the scope of the
TNCSRA. We therefore review the trial court's interpretation of the statute
with a fresh set of eyes.
A.
We begin our analysis of the Act by acknowledging certain basic
principles of statutory construction. Our Supreme Court has clearly stated that
"[t]he overriding goal of all statutory interpretation 'is to determine as best we
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can the intent of the Legislature, and to give effect to that intent.'" State v.
S.B., 230 N.J. 62, 67 (2017) (quoting State v. Robinson, 217 N.J. 594, 604
(2014)). Consequently, "[t]o determine the Legislature's intent, we look to the
statute's language and give those terms their plain and ordinary meaning
because 'the best indicator of that intent is the plain language chosen by the
Legislature.'" State v. J.V., 242 N.J. 432, 442-43 (2020) (first citing
DiProspero v. Penn, 183 N.J. 477, 492 (2005); and then quoting Johnson v.
Roselle EZ Quick, LLC, 226 N.J. 370, 386 (2016)). Accordingly, "[i]f, based
on a plain and ordinary reading of the statute, the statutory terms are clear and
unambiguous, then the interpretative process ends, and we 'apply the law as
written.'" Id. at 443 (quoting Murray v. Plainfield Rescue Squad, 210 N.J.
581, 592 (2012)). It is inappropriate for "[a] court . . . [to] rewrite a plainly[
]written enactment of the Legislature [or to] presume that the Legislature
intended something other than that expressed by way of the plain language."
Ibid. (third alteration in original) (quoting O'Connell v. State, 171 N.J. 484,
488 (2002)). Only "[i]f . . . the statutory text is ambiguous, [can courts] resort
to 'extrinsic interpretative aids, including legislative history,' to determine the
statute's meaning." Ibid. (quoting S.B., 230 N.J. at 68).
There have been no published cases interpreting the insurance-related
provisions of the TNCSRA, or any other provision of the Act for that matter.
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The core issue, in a nutshell, is whether the Act regulates app-based food
delivery services or instead is limited to regulating companies and drivers that
arrange and provide transportation services for passengers.
In determining the scope of the statute's intended reach, that is, its
"overall meaning," see Miah v. Ahmed, 179 N.J. 511, 521 (2004), we pay
special attention to the definition section. Even before we carefully examine
the plain text of specific definitions, we consider which terms and phrases the
Legislature saw fit to define rather than rely on their plain and ordinary
meaning. The very existence—or non-existence—of specific definitions
reveals the basic concepts and principles the Legislature deemed to be
especially important, warranting precise and explicit formulations. The
Legislature's decision to define certain terms but not others can thus provide
insight into the overall meaning of the statutory scheme and the scope of its
reach.
We next reproduce the definitions set forth in N.J.S.A. 39:5H-2 that are
directly relevant to this appeal:
"Personal vehicle" means a motor vehicle that is
used by a transportation network company driver to
provide prearranged rides and is owned, leased, or
otherwise authorized for use by the transportation
network company driver. . . .
"Prearranged ride" means the provision of
transportation by a transportation network company
A-2883-20
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driver to a transportation network company rider,
beginning when a driver accepts a ride requested by a
rider through a digital network controlled by a
transportation network company, continuing while the
driver transports a requesting rider, and ending when
the last requesting rider departs from the personal
vehicle. . . .
"Transportation network company" means a
corporation, partnership, sole proprietorship, or other
entity that is registered as a business in the State or
operates in this State, and uses a digital network to
connect a transportation network company rider to a
transportation network company driver to provide a
prearranged ride. . . .
"Transportation network company driver" or
"driver" means a person who receives connections to
potential riders and related services from a
transportation network company in exchange for
payment of a fee to the transportation network
company, and uses a personal vehicle to offer or
provide a prearranged ride to a rider upon connection
through a digital network controlled by a
transportation network company in return for
compensation or payment of a fee.
"Transportation network company rider" or
"rider" means a person who uses a transportation
network company's digital network to connect with a
transportation network company driver to receive a
prearranged ride from the driver using the driver's
personal vehicle.
[N.J.S.A. 39:5H-2.]
Most notably, 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
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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.
Furthermore, the list of for-hire motor vehicles that are expressly
excluded from the Act's reach 3 all share an important common feature: they are
all used to transport passengers. Accordingly, every type of vehicle
specifically mentioned in the definition section of the TNCSRA, whether
included or excluded from the Act's governance, is used to transport people. It
bears noting that the Act specifically exempts transportation network company
drivers from registering their personal vehicles as "commercial or for hire
vehicle[s]." N.J.S.A. 39:5H-3. Apart from that exemption, there are no other
references in the Act to "commercial vehicles," which are defined in N.J.S.A.
3
Specifically, the definitions of "personal vehicle" and "prearranged ride"
exclude autocabs, taxis, limousines, autobuses, jitneys, motor buses, other for-
hire vehicles, and vehicles used for carpools and van pools. The definition of
"transportation network company" further excludes entities that arrange non -
emergency medical transportation services for certain Medicaid and Medicare
recipients. The list of excluded vehicles is important in revealing the scope of
the statutory scheme because the Act explicitly provides that transportation
network companies and drivers are governed exclusively by the TNCSRA.
N.J.S.A. 39:5H-26. Under this framework, transportation network companies
and drivers are not required to register their personal vehicles as commercial
for-hire vehicles. N.J.S.A. 39:5H-3. Nor are they required to obtain a license
or permit from a county or municipality. N.J.S.A. 39:5H-26. The excluded
vehicles, in contrast, remain subject to other statutes, regulations, and local
ordinances that govern the licensing and operation of for-hire vehicles used to
transport passengers.
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39:1-1 to "include[] every type of motor-driven vehicle used for commercial
purposes on the highways, such as the transportation of goods, wares and
merchandise." N.J.S.A. 39:1-1. The 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. Cf. Hovbilt, Inc.
v. Township of Howell, 263 N.J. Super. 567, 571 (App. Div. 1993) (explaining
that under the principle of ejusdem generis, "when general words follow
specific words in a statutory enumeration, the general words are construed to
embrace only the objects similar in nature to those objects enumerated by the
preceding specific words[,] . . . sav[ing] the legislature from spelling out in
advance every contingency in which the statute could apply").
Aside 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. Specifically, N.J.S.A. 39:5H-3 provides:
A transportation network company or a transportation
network company driver shall not provide a taxi,
limousine, or other for-hire vehicle service, or freight
service except as authorized pursuant to applicable
law. A transportation network company driver shall
not be required to register the driver's personal vehicle
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used to provide prearranged rides as a commercial or
for-hire vehicle.
[N.J.S.A. 39:5H-3 (emphasis added).]
This provision confirms that freight services are governed by other
applicable laws, not the TNCSRA. Given that the Act expressly provides that
transportation network companies and drivers "shall be governed exclusi vely
by [the Act]," N.J.S.A. 39:5H-26, the declaration that freight services are
subject to other applicable laws bolsters our conclusion that such services fall
outside the Act's intended reach. It also shows conclusively that the
Legislature knew how to refer to non-passenger transportation services but did
so only in the context of explaining what is not governed by the TNCSRA. Cf.
DiProspero, 183 N.J. at 495 ("The canon of statutory construction, expressio
unius est exclusio alterius—expression of one thing suggests the exclusion of
another left unmentioned—sheds some light on the interpretative analysis."
(quoting Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 112 (2004))).
B.
Turning to the substantive provisions of the Act that plaintiff relies
upon, N.J.S.A. 39:5H-10 comprehensively establishes the requirements for
insurance coverage. That section specifies different levels of required
minimum coverage depending on whether a driver who has logged into the
transportation network company's digital network is available to receive a
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prearranged ride request but is not providing a prearranged ride. Pertinent to
this appeal, N.J.S.A. 39:5H-10(c) specifically states that:
Whenever a transportation network company driver is
providing a prearranged ride, the transportation
network company driver, transportation network
company, or any combination of the two shall
maintain the following insurance coverage:
(1) primary automobile liability insurance in the
amount of at least $1,500,000 for death, bodily injury,
and property damage;
(2) primary automobile insurance for medical
payments benefits in an amount of at least $10,000 per
person per incident, which shall only apply to and
provide coverage for the benefit of the transportation
network company driver; and
(3) uninsured and underinsured motorist coverage in
an amount of at least $1,500,000.
[N.J.S.A. 39:5H-10(c).]
Plaintiff relies on the requirement set forth in subparagraph 3 to support
his claim that James River's policy must provide underinsured motorist
coverage in the amount of at least $1,500,000. However, that provision by its
literal terms applies only when a "transportation network company driver is
providing a prearranged ride," thereby incorporating the Act's precise and
unambiguous definitions of the terms "transportation network company driver"
and "prearranged ride." The insurance-related provisions, we emphasize,
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cannot be read in isolation, but rather must be construed as part of an
integrated whole. See Miah, 179 N.J. at 521.
Plaintiff contends that transporting food is covered under the Act
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." 4 Defendant's central argument relies
principally, if not exclusively, on the phrase "and related services," which he
broadly construes to include food delivery.
We reject plaintiff's contention that this isolated phrase so significantly
expands the scope of the statutory scheme. We acknowledge the general
principle of statutory construction that we must give meaning to every word
and phrase in a statute. See Meehan v. Antonellis, 226 N.J. 216, 237-38
(2016). In this instance, however, plaintiff's construction of the phrase "and
related services" disregards the plain meaning of other words and phrases
employed in the statute, indeed, employed in the same sentence that plaintiff
quotes. Plaintiff's argument is thus inconsistent with the well-established
canon of statutory construction that "a statute is to be interpreted in an
integrated way without undue emphasis on any particular word or phrase and,
4
We note that we are quoting plaintiff's contention in his brief, not the
statutory definition listed in N.J.S.A. 39:5H-2, which does not contain the
reproduced emphasis.
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if possible, in a manner which harmonizes all of its parts so as to do justice to
its overall meaning." Miah, 179 N.J. at 521 (quoting Chasin v. Montclair State
Univ., 159 N.J. 418, 427 (1999)).
In line with that canon of statutory construction, the phrase "and related
services" must be understood in the context of the other language employed in
the definition of the term "transportation network company driver ." See ibid.As our Supreme Court explained in Miah, "[t]he meaning of words [used in a
statute] may be indicated and controlled by those [words] with which they are
associated." Ibid. (second and third alterations in original) (quoting Germann
v. Matriss, 55 N.J. 193, 220 (1970)).
In this application, 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." As we have noted, the term
"riders" clearly refers to persons, not items. Such appurtenant services might
include, for example, handling (onloading/stowing/offloading) the rider's
luggage. The phrase might also apply to the prearranged transport of a pet or
service animal that is accompanying the rider. 5 The critical point is that,
5
We note that the only reference to animals in the TNCSRA is found in the
section that requires TNCs to adopt a policy of non-discrimination. See
N.J.S.A. 39:5H-15(c). That section provides that drivers "shall comply with
all applicable laws relating to accommodation of service animals." Ibid.A-2883-20
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contrary to plaintiff's broad construction, the phrase "and related services"
presupposes a connection to arrange the transportation of a rider.
C.
In sum, we believe the primary question posed in this case is easily
resolved under a plain-text analysis. The statutory scheme comprehensively
regulates app-based services that provide rides to human passengers. As we
have stressed, nothing in the statutory text mentions, much less
comprehensively regulates, the delivery of food. In these circumstances, we
need not consider extrinsic sources to determine legislative intent. See J.V.,
242 N.J. at 443.
Although we need not look to legislative history to clarify the Act's plain
language, we note in the interest of completeness that plaintiff cites no
legislative history suggesting a driver is covered under the TNCSRA while
delivering food. Our review of the legislative history reveals nothing that
might conceivably support plaintiff's contention that the Act applies to food
delivery services.
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The only extrinsic interpretative aid plaintiff presents for our
consideration is an excerpt from the New Jersey Motor Vehicle Commission
(MVC)6 website, which explains:
The MVC is implementing new requirements for
TNCs, which use a digital network to connect a rider
to a driver to provide a prearranged ride. The
Transportation Network Company Safety and
Regulatory Act establishes safety and insurance
requirements for TNCs that conduct business in New
Jersey in order to protect drivers as well as the riding
public.
[Transportation Network Company (TNC) Safety and
Regulatory Act, N.J. MOTOR VEHICLE COMM'N,
https://www.state.nj.us/mvc/business/tnc.htm (last
visited Sept. 20, 2022).]
We agree with plaintiff that the Act serves to protect drivers as well as
"the riding public." Ibid. But nothing on the webpage suggests that the safety
and insurance requirements for transportation network companies set forth in
the Act protect drivers while they are delivering food rather than providing
prearranged rides to riders. On the contrary, the Frequently Asked Questions
document linked on the same MVC webpage, explicitly states that a
6
We note that the MVC is one of the agencies responsible for implementing
the TNCSRA. N.J.S.A. 39:5H-27 authorizes both the MVC Commissioner and
the Director of the Division of Consumer Affairs in the Department of Law
and Public Safety to adopt rules and regulations to implement the Act. See
also N.J.S.A. 39:5H-4.2 (also authorizing the Director of the Division of
Taxation to adopt rules and regulations).
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"prearranged ride" is "the provision of transportation by a TNC driver to a
TNC rider," which "begin[s] when a driver accepts a ride requested by a rider
through a digital network controlled by a TNC, continu[es] while the driver
transports a requesting rider, and end[s] when the last requesting rider departs
from the driver's personal vehicle." Transportation Network Company Safety
and Regulatory Act ("Act") Frequently Asked Questions ("FAQs"), N.J.
MOTOR V EHICLE COMM'N 1,
https://www.state.nj.us/mvc/pdf/business/tncfaq.pdf (last visited Sept. 20,
2022).
We find further extrinsic support for our interpretation of the Act in the
regulations that have been promulgated by the MVC. See N.J.A.C. 13:21-26.1
to -26.9. It is well-established that a reviewing court "must be mindful of, and
deferential to, the agency's 'expertise and superior knowledge of a particular
field.'" Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J.
1, 10 (2009). Accordingly, implementing regulations are relevant in
determining the scope and overall meaning of the statute pursuant to which
those regulations were promulgated. However, we are "in no way bound by
[an] agency's interpretation of a statute or its determination of a strictly legal
issue." Div. of Youth & Fam. Servs. v. T.B., 207 N.J. 294, 302 (2011)
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(alteration in original) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J.
85, 93 (1973)).
In this instance, the regulations promulgated by the MVC detail the
licensing process for transportation network companies. Like the TNCSRA
itself, nothing in those regulations mentions the transport of food or other
goods. Although the regulatory definitions generally track the statutory
definitions, see N.J.A.C 13:21-26.1, they create a new definition for the phrase
"operation of a transportation network company." That phrase is defined to
mean "engaging in the business of operating a digital network in the State to
connect a TNC rider to a TNC driver to provide a prearranged ride." Ibid.(emphasis added). That definition shows that the regulatory framework, like
the statutory scheme it implements, governs the use of mobile digital
technology to arrange for the transport of riders, not the transport of food or
other goods.
D.
The Legislature by enacting the TNCSRA clearly recognized the
commercial and societal value of new technologies that use mobile digital
networks to connect customers with service providers. But while the use of an
app is necessary to trigger the Act's provisions, that alone is not sufficient.
The Act does not automatically apply, in other words, whenever someone uses
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an app to connect to a driver. Rather, to fall within the Act's jurisdiction —and
thus to invoke the protections of its minimum insurance coverage provisions—
the app-based connection must be used to arrange a ride between a driver and a
human rider. In this case, plaintiff was not capable of acting as a TNC driver
within the scope of the TNCSRA; his motorcycle does not meet the local
vehicle requirements for driving passengers for Uber in New Jersey. See
Vehicle Requirements: New Jersey, U BER,
https://www.uber.com/us/en/drive/new-jersey/vehicle-requirements/ (last
visited Sept. 20, 2022) (listing a four-door vehicle as a minimum requirement
for driving passengers).
We add that, while the TNCSRA is of comparatively recent vintage, it
was enacted before the COVID-19 pandemic, during which the imperative for
social distancing simultaneously increased the demand for home delivery of
food and reduced the demand for ridesharing. 7 But the evolution of the supply
and demand marketplace since the TNCSRA was enacted does not change its
plain text. While there may be circumstances, not present here, where it is
necessary and appropriate to teach an old law to do new tricks, a statute 's text
7
We note that to maximize their income, transportation network company
drivers on any given day may connect to multiple apps and perform multiple
functions, delivering food on one trip and transporting passengers on another
trip.
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does not evolve sua sponte. Reviewing courts must afford due deference to the
legislative process; it is not for the Judiciary to amend a statute to account for
new developments.
Plaintiff argues in this regard that "there is a hole in the law created by
the constant evolution of technology." In making this argument, he tacitly
acknowledges that his situation falls outside the heartland of the statutory
framework. He asks us to fill that "hole" for his benefit, but it is not our place
to do so. As we have already stated, although the Act clearly serves to protect
drivers and not just passengers, by its literal and unambiguous terms, it
protects only those drivers who are in the process of arranging or providing a
ride to a rider.
We appreciate that in this case, plaintiff was seriously injured and is
seeking insurance coverage related to those injuries. He is not seeking
compensation from James River for lost or damaged personal property. We
stress, moreover, that the gravamen of plaintiff's argument is not that food
should be protected under the Act. No one contends that food is tantamount to
human passengers in terms of the need for insurance coverage. Rather,
plaintiff argues that food delivery drivers should be afforded comparable
protection to that which is given to drivers who are transporting prearranged
riders. That argument rests on the proposition that the risk of a motor vehicle
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accident and ensuing injury to a driver is essentially the same while delivering
food and while transporting a prearranged rider. See supra note 7 (recognizing
that a driver may alternate between these two distinct types of app-based
transportation services). The keystone of plaintiff's statutory construction
argument is that there is no sound reason for the Legislature to have afforded
insurance protection to a driver who is in the process of transporting a
prearranged rider but not to that same driver in the same vehicle while he or
she is in the process of fulfilling the prearranged delivery of food.
Although we appreciate the economic consequences of plaintiff's
situation, his contention that there is a "hole" in the law raises policy
considerations that simply are beyond our purview. See J.V., 242 N.J. at 443
("A court may neither rewrite a plainly[ ]written enactment of the Legislature
nor presume that the Legislature intended something other than that expressed
by way of the plain language." (alteration in original) (quoting O'Connell v.
State, 171 N.J. at 488)). In the final analysis, it is for the Legislature, not trial
or intermediate appellate courts, to fill the void to which plaintiff alludes.
We note that there is pending legislation that, if enacted, would do just
that by supplementing the TNCSRA, establishing insurance coverage
requirements for businesses that use a digital network to connect customers to
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a "delivery network company driver for the prearranged delivery of goods."8
S. 486 (as amended by Senate, Mar. 24, 2022) (emphasis added). We decline
to venture an opinion on whether that pending legislation supports or
undermines plaintiff's arguments on this appeal. Compare In re Passaic Cnty.
Utils. Auth. Petition, 321 N.J. Super. 186, 207 (App. Div. 1999) ("Reliance on
proposed or pending legislation to interpret existing statutes is of little
value."), rev'd on other grounds, 164 N.J. 270 (2000), and State v. Tormasi,
466 N.J. Super. 51, 65 (App. Div. 2021) ("We place little value on legislative
proposals that are not enacted into law."), certif. granted, 250 N.J. 6 (2022),
with Voges v. Borough of Tinton Falls, 268 N.J. Super. 279, 285 (App. Div.
1993) ("Statutes [cannot] be read in a vacuum void of relevant historical and
policy considerations and related legislation." (quoting Helfrich v. Hamilton
Twp., 182 N.J. Super. 365, 370 (App. Div. 1981))). All we can say for certain
is that the TNCSRA in its present form does not apply to the circumstances of
this case.
Affirmed.
8
The bill as amended defines a "good" to mean "any item, including food,
other than mail or a package to which postage has been affixed." S. 486 (as
amended by Senate, Mar. 24, 2022) (emphasis added).
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