Hit by a Delivery Van? Amazon, FedEx, UPS, and Contractor Liability in Ohio

Published November 5, 2020 · Injury Law Basics

Look down almost any street in Kettering, Beavercreek, or Huber Heights this fall and you will see them: white vans, box trucks, and ordinary cars with a package on the passenger seat, double-parked and moving fast. With so many families shopping from home during the pandemic and the holidays approaching, delivery traffic in the Dayton area is heavier than it has ever been.

When one of those vehicles runs a stop sign or rear-ends you on Wilmington Pike, the logo on the package may tell you very little about who is legally responsible. Here is how these claims work in Ohio and why the first few weeks matter so much.

The name on the box is not always the defendant

Large retailers and shipping companies deliver packages through several different arrangements, and the arrangement matters.

• Company employees. Some carriers deliver largely with their own employees in company-owned vehicles.
• Contracted delivery companies. Others rely heavily on separate businesses that employ their own drivers and operate their own vans, sometimes with the retailer's or carrier's branding on the vehicle and the driver's uniform. Amazon, for example, contracts with independent delivery companies it calls delivery service partners.
• Individual drivers using their own cars. Some packages are delivered by people who sign up through an app and drive their personal vehicles.
• Unmarked vans and rentals. During peak season, extra vehicles are often rented or leased, and some carry no markings at all.

Each arrangement points to a different employer, a different insurance policy, and sometimes a different set of legal arguments.

How Ohio law decides who is responsible

Employees: the employer answers for the driver

Under the long-standing doctrine of respondeat superior, Latin for "let the master answer," an employer is responsible for the negligence of an employee acting within the scope of employment. A driver making deliveries on a route is almost always acting within that scope. When the driver is the company's employee, the company and its commercial insurance stand behind the claim.

Independent contractors: the general rule and its limits

The general rule in Ohio is that a business that hires an independent contractor is not automatically responsible for the contractor's negligence. That is precisely why so many delivery networks are structured around contractors.

But the general rule has limits, and they come up regularly in delivery cases:

• Control. If the company that hired the contractor controls the details of how the work is done, such as routes, delivery quotas, time windows, vehicle requirements, and driver monitoring, the "independent" label may not hold up. Courts look at the actual relationship, not just the contract's title.
• Negligent selection or retention. A company can be responsible for its own negligence in choosing or keeping a contractor it knew, or should have known, was unsafe.
• The contractor's own liability. Even when the retailer or carrier is not liable, the delivery company that employed the driver usually is, and it typically carries its own commercial coverage.

We look at every one of these layers. Identifying the right defendants is not a technicality; it is often the difference between a claim limited to one small policy and a claim with real coverage behind it.

Commercial coverage versus personal policies

A van operated by a delivery business will usually be insured under a commercial auto policy, and the limits on commercial policies are often higher than on a personal policy. There may also be excess or umbrella coverage stacked above the primary policy. I wrote about finding every available layer of coverage a few years ago; the same principles apply here.

The picture is different when the driver was using a personal car through an app-based program. The driver's personal auto policy may exclude business use, and whether other coverage applies can depend on the program's terms and whether the driver was logged in or carrying a package. These questions have to be answered with documents, not assumptions, and we do not guess about any company's insurance program.

Evidence to preserve, and fast

Delivery vehicles generate a remarkable amount of data. Much of it can prove exactly where the driver was, how fast the van was going, and what the driver was doing at the moment of the crash:

• GPS and route data showing the van's speed and location.
• Handheld scanner and app records showing when packages were scanned, which can reveal whether the driver was looking at a device while driving.
• Delivery quotas and schedules, which can show pressure to rush.
• Vehicle cameras and telematics, where the van is equipped with them.
• Driver hiring, training, and safety records held by the delivery company.

None of that is kept forever. A written preservation letter to the driver, the delivery company, and the retailer or carrier should go out within days. Our guide chapter on gathering evidence while it still exists explains how preservation letters work and why timing is everything.

At the scene, if you are able: photograph the vehicle, its markings and license plate, the driver's uniform or badge, and any package labels visible in the van. Ask the driver who he works for, and write the answer down. Request the police report and make sure the delivery company is identified on it.

Do not forget your own coverage

Even with a commercial defendant, your own policy can matter. If the at-fault driver turns out to have no applicable coverage, or limits that are too low for your injuries, your uninsured and underinsured motorist coverage may fill the gap. Under R.C. 3937.18(C), underinsured motorist coverage applies when the liability limits available to you are less than your underinsured limits, and it is reduced by the amounts available from those liability policies. Notify your own insurer promptly and do not settle with anyone before you understand how those coverages interact.

A note about the packages themselves

If the injury involves a defective product rather than a crash, the question of who is responsible is different. I discussed the Supreme Court of Ohio's recent decision on online marketplaces in our October post on Stiner v. Amazon.

What this means for you

• The company whose name is on the package may or may not be legally responsible; the driver's actual employer almost always is.
• Contractor arrangements do not end the inquiry. Control and negligent selection can bring the larger company into the case.
• Delivery vehicles carry GPS, scanner, and route data that can prove fault, but only if it is preserved quickly.
• Your own UM/UIM coverage can be essential when the driver's coverage is missing or thin.