HB2539 H B&I AM #1
Sears 3258
The Committee on Banking & Insurance moved to amend the bill by striking everything after the enacting clause and inserting the provisions of the strike and insert amendment
(a) "Delivery Network Company" or "DNC" means a corporation, partnership, sole proprietorship, or other entity that operates in West Virginia and uses a digital network to connect a Delivery Network Company Customer to a Delivery Network Driver to provide Delivery Services. A DNC shall not be deemed to control, direct, or manage the Personal Vehicles or Delivery Network Drivers that connect to its Digital Network, except where agreed to by written contract.
(b) "Delivery Network Company Customer" or "Customer" means a person who orders the delivery of goods, where the Delivery Network Driver delivers such goods at the direction of the Customer.
(c) "Delivery Network Driver" or "Driver" means an individual who provides Delivery Services through a DNC's Digital Network using a personal vehicle.
(d) "Digital Network" means any online-enabled application, software, website, or system offered or utilized by a Delivery Network Company that enables deliveries with Delivery Network Drivers.
(e) "Personal Vehicle" means a vehicle that is:
(1) Used by a Delivery Network Driver to provide delivery services via a Digital Network;
(2) Owned, leased, or otherwise authorized for use by the Delivery Network Driver; and
(f) "Delivery Available Period" means the period:
(1) When a Driver has logged on to a Digital Network and is available to receive requests to provide Delivery Services from a Delivery Network Company;
(2) Is operating a Personal Vehicle; and
(3) Is not providing Delivery Services or operating in the Delivery Service Period.
(g) "Delivery Services" means the fulfillment of delivery requests made by a Customer through a Digital Network, including the pickup of any good(s) and the delivery of the good(s) to a Customer by a Delivery Network Driver. Delivery Services may include a series of deliveries to different Customers.
(h) "Delivery Service Period" means the period:
(1) Beginning when a Driver starts operating a Personal Vehicle enroute to pick up goods for a delivery or series of deliveries as documented via a Digital Network controlled by a Delivery Network Company;
(2) Continuing while the Driver transports the requested deliveries; and
(3) Ending upon delivery of the requested good(s) to (i) the Customer or the last Customer in a series of deliveries, or (ii) a location designated by the Delivery Network Company, including for purposes of returning the good(s).
Nothing in this article limits the scope of federal or state law regarding delivery or transport of goods. Deliveries made under this article that are subject to such other law must also comply with the requirements of that law. In the event of a conflict between this article and another law dealing with the delivery or transport of goods, the other law prevails.
(a) A Delivery Network Company shall 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.
(b) During the Delivery Service Period and Delivery Available Period, the Delivery Network Driver, Delivery Network Company, or any combination of the two shall maintain insurance that insures the driver for liability to third parties of not less than $50,000 $25,000 for damages arising out of bodily injury sustained by any one person in an accident, of not less than $100,000 $50,000 for damages arising out of bodily injury sustained by all persons injured in an accident, and of not less than $25,000 for all damages arising out of damage to or destruction of property in an accident.
(c) If the insurance coverage maintained by a Delivery Network Driver pursuant to this section has lapsed or does not provide the required coverage, insurance maintained by the Delivery Network Company shall provide the coverage required by this article beginning with the first dollar of a claim and the insurance maintained by the Delivery Network Company shall have the duty to defend the claim.
(d) Coverage under an automobile insurance policy maintained by the Delivery Network Company shall not be dependent upon another motor vehicle liability insurer first denying a claim, nor shall another motor vehicle liability insurance policy be required to first deny a claim.
(e) Insurance coverage required by this article may be obtained from an insurance company duly licensed to transact business under the insurance laws of West Virginia or by an eligible surplus lines broker.
(f) The coverage required pursuant to this section shall be deemed to meet the requirements of §17D-4-1, et seq. of this code.
(g) A Delivery Network Driver shall carry proof of insurance required pursuant to this section at all times while using a Personal Vehicle in connection with a Digital Network. In the event of an accident, a Delivery Network Driver shall, upon request, provide insurance coverage information to the directly interested parties, automobile insurers, and investigating law enforcement officers.
The insurance coverage information may be displayed or provided in either paper or electronic form. A Delivery Network Driver shall, upon request, disclose to the directly interested parties, automobile insurers, and investigating law enforcement officers whether the Driver was operating during the Delivery Available Period or the Delivery Service Period at the time of the accident.
(h) In a claims coverage investigation, a Delivery Network Company or its insurer shall cooperate with all insurers that are involved in the claims coverage investigation to facilitate the exchange of information and shall immediately provide upon request by directly involved parties or any insurer the precise times that a Delivery Network Driver began and ended the Delivery Available Period and/or the Delivery Service Period on the Delivery Network Company’s Digital Network in the twelve-hour period immediately preceding the accident and in the twelve-hour period immediately following the accident. Insurers potentially providing the coverage required by this article shall disclose, upon request by any other such insurer involved in the particular claim, the applicable coverages, exclusions, and limits provided under any automobile insurance maintained in order to satisfy the requirements of this section.
(i) The insurer or insurers of a Delivery Network Company providing coverage under this section shall assume primary liability for a claim when a dispute exists as to when the Delivery Available Period and/or the Delivery Service Period began or ended and the Delivery Network Company does not have available, did not retain, or fails to provide the information required by this section.
(a) A Delivery Network Company shall not permit a Delivery Network Driver to engage in Delivery Services on the DNC's Digital Network until the DNC discloses in writing to the Driver:
(1) The insurance coverage, including the types of coverage and the limits for each coverage, that the Delivery Network Company provides while the Driver uses a Personal Vehicle in connection with a Delivery Network Company's Digital Network; and
(2) That the Driver's own automobile insurance policy might not provide any coverage during the Delivery Available Period, if it applies, or the Delivery Service Period.
(a) An authorized insurer that writes motor vehicle liability insurance in West Virginia may exclude any and all coverage and the duty to defend or indemnify for any injury or loss that occurs during the Delivery Available Period and the Delivery Service Period, including but not limited to:
(1) Liability coverage for bodily injury and property damage;
(2) Personal injury protection coverage;
(3) Uninsured and underinsured motorist coverage;
(4) Medical payments coverage;
(5) Comprehensive physical damage coverage; and
(6) Collision physical damage coverage.
(b) Nothing in this article invalidates or limits an exclusion contained in a motor vehicle liability insurance policy, including any insurance policy in use or approved for use that excludes coverage for motor vehicles used for delivery or for any business use.
(c) Nothing in this article invalidates, limits or restricts an insurer’s ability under existing law to underwrite any insurance policy. Nothing in this article invalidates, limits or restricts an insurer’s ability under existing law to cancel and non-renew policies.
(d) A motor vehicle liability insurer that defends or indemnifies a claim against a Delivery Network Driver that is excluded under the terms of its policy shall have the right to seek recovery against the insurer providing coverage under §17D-7-3 of this code if the claim:
(1) Occurs during the Delivery Available Period or the Delivery Service Period; and
(2) Is excluded under the terms of its policy.
(a) Notwithstanding any other law to the contrary, drivers are independent contractors and not employees of the delivery network company for if all of the following conditions are met:
(1) the delivery network company does not unilaterally prescribe specific hours during which the delivery network driver must be logged into the delivery network company’s digital network;
(2) The delivery network company imposes no restrictions on the delivery network driver’s ability to utilize digital networks from other delivery network companies except while providing delivery services through the delivery network company’s digital network;
(3) The delivery network company does not assign a delivery network driver a particular territory in which to operate;
(4) The delivery network company does not restrict a delivery network driver from engaging in any other occupation or business; and
(5) The delivery network company and delivery network driver agree in writing that the driver is an independent contractor of the delivery network company.
(b) A delivery network company operating under this article is not required to provide workers’ compensation coverage to a delivery network driver that is classified as an independent contractor pursuant to this section.
This article shall take effect on July 1, 2024.
NOTE: The purpose of this bill is to create the Delivery Network Company Insurance Act. The bill sets forth definitions; clarifies the interaction with other code provisions; sets forth insurance requirements; provides for disclosures to delivery network drivers; provides for exclusions in motor vehicle liability insurance policies; and identifies an effective date.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
Adopted
Rejected