I.  INTRODUCTION

Electric foot scooters (“scooters”) are now being shared and used throughout Indianapolis and other Indiana cities.  If you have ever watched someone riding one down the street or on a sidewalk, you may have thought of the risks and dangers for the rider, other scooter riders, motorists and pedestrians.  This article will explain some of the contractually acknowledged risks of use and whether those risks are covered by standard auto insurance policies, standard homeowner’s or standard renter’s insurance policies.

II.  THE ELECTRIC SCOOTER CONTRACT

There are at least four electric foot scooter sharing companies operating in Indianapolis: Bird, Lime, Lyft, and Spin (“the companies”).  They all offer similar scooter services.  In order to use the scooter, the user installs an app on his or her phone, supplies credit card or other payment information and accepts the scooter contract.  The user scans the code on the scooter, which begins the trip.  To end the trip, the user parks the scooter then ends the ride through the app.  The price of the trip is withdrawn from the user’s credit card or other electronic payment methods.  The companies have similar contracts (“the standard contract”) containing similar disclaimer and risk transfer provisions that attempt to absolve the companies from liability for injuries to the user or others, require arbitration of disputes, and prohibit class action complaints.

A. Release, Disclaimer, and Assumption of the Risk

The standard contract contains provisions in which the user agrees to perform a safety inspection before each use to make sure the scooter is safe and not to use the scooter if there is any sign of damage, mechanical problem or maintenance needed.  Additionally, the user agrees that he or she is aware of the risks and hazards of using the scooter, including risks, dangers, and hazards that may result in injury or death to the user or others.  These provisions also state that the user releases the company, its employees’ contractors and the municipality in which the scooter is being used from liability for all claims arising from, or related to, the user’s use of the company’s services and equipment.  Accordingly, if the user agrees to the standard contract, which he or she must do in order to use the scooter, he or she is agreeing that if he or she is injured by using the scooter (even if the injuries arise from the negligence or fault of the company in failing to provide a safe scooter), he or she has released any right to recover from the company for those injuries.

B. Indemnity and Hold Harmless

In addition to a release of the company for any injuries the user may suffer, the standard contract also includes an indemnity section providing that if the user injures someone else while using the scooter and that person seeks to recover from the company for those injuries, the user agrees that he or she will pay for those injuries and the company’s attorneys’ fees and expenses.   The standard contract specifically states that such indemnity is required even if the injuries were caused by the negligence of the company in providing an unsafe, defective, or poorly maintained scooter.

C. Traffic Tickets, Impound Fees, Fines, Fees, Lost or Stolen Scooters

The standard contract also provides that the user agrees to allow the company to pay any traffic tickets, fines, charges, or impound fees on the user’s behalf and to charge the user’s credit card for them.  The user also agrees to be responsible for a lost or stolen scooter when the user was the last one to use it.

D. Arbitration Agreement

Another feature of the standard contract is an agreement to arbitrate any disputes with the company.  Bird requires the arbitration to be in Los Angeles, California, or a mutually-agreed-upon location.  Lime requires the arbitration to be in the metropolitan statistical area where the user resides.  Spin allows arbitration over amounts less than $50,000 to be by phone and otherwise to be in the place where the user resides.  The standard contract also provides that the user will not bring claims as part of a class action.

III.  INSURANCE COVERAGE

A. The Companies Do Not Agree to Provide Insurance Coverage for the User

The standard contract does not provide that the company will provide any insurance for the user’s liability.[1]  Any insurance coverage for the user’s liability for bodily injury and property damage arising from use of the scooter must be procured individually by the user.  Before using a scooter, a user should review his or her own insurance policies to determine if he or she has coverage for liability while using a scooter.

B. The User’s Auto Policy

A standard auto policy insures the named insured for liability arising out of the use of any auto but excludes coverage for liability arising out of the ownership, maintenance or use of any vehicle that has less than four wheels.[2] Because a scooter has less than four wheels, a standard auto policy containing this exclusion would not cover the user if the user causes bodily injury or property damage to another motorist, scooter user, or pedestrian while using a scooter.  Additionally, standard auto policies usually contain an exclusion for bodily injury arising out of the use of any vehicle other than the vehicle listed in the declarations of the policy which is available for the regular or frequent use of the named insured.  If a scooter user rides a scooter every day to go to and from his or her apartment to work, and the scooter or a similar scooter in the “fleet” of the companies’ scooters is regularly available on the sidewalk near the user’s apartment, the scooter is arguably available for regular use such that liability while using it is also excluded under this or a similar exclusion. [3]

A standard auto policy also does not cover property damage or loss of property that the insured rents or that is in the insured’s care, custody, or control.  If the user damages a scooter and is liable to the companies for the damage, the user’s liability would not be covered under the liability section of a standard auto policy issued to the user.

C. The User’s Homeowner’s or Renter’s Policy

A standard homeowner’s or renter’s insurance policy covers an insured person for liability for bodily injury or property damage arising out of an accident.  However, there is typically an exclusion for bodily injury or property damage arising out of the use of a motor vehicle, which is defined in a standard form as “a self-propelled land vehicle.”  A scooter would meet that definition such that liability arising out of its use would not be covered.  Homeowner’s and renter’s policies may provide limited coverage for some motor vehicles such as motor vehicles designed for recreational use off public roads, or golf carts when used on the premises of the insured home, on golf courses, or on the streets of a private residential community where the insured’s residence is located and where golf carts are allowed.  In Indianapolis, scooters are specifically required to be operated on city streets and not on sidewalks, so it may be difficult to argue that they should be covered as “recreational vehicles designed for use off public roads.”[4]  Accordingly, a scooter would not likely fall within the coverage for golf carts and certain off-road vehicles.  Of course, there are many variations in homeowner’s policies regarding the types of motor vehicles that are not included in the motor vehicle exclusion, and there may be some homeowner’s policy forms that would cover liability for damages and injuries arising from the use of an electric scooter.  Most will not.

A homeowner’s policy or renter’s policy also provides first-party coverage for damage or loss of certain personal property.  However, the standard first-party coverage in a homeowner’s or renter’s policy contains an exclusion from such coverage for “motor vehicles” unless they are used solely to service the insured premises or to assist the handicapped.  If a user damages the scooter or it is stolen while in his or her possession, the first party property coverage of his or her standard homeowner’s or renter’s coverage form will not likely provide coverage for the loss or damage.

D. The User’s Personal Umbrella Policy

A personal umbrella insurance policy covers certain liabilities that are not covered under a primary homeowner’s, renter’s, or auto policy.  However, a standard personal umbrella form contains a provision that states that, with respect to a motor vehicle, the named insured is only insured if the motor vehicle meets the definition of “auto” in the policy and is insured by a primary auto policy.  As shown above, many standard auto policies will not provide liability coverage for the use of a scooter, and as a result, the umbrella policy with a standard provision that it will not apply to a motor vehicle unless it is an “auto” and insured under a primary auto policy would not provide liability coverage for injury and damages arising from the use of a scooter.

IV.  CONCLUSION

The standard electric foot scooter contract transfers all risks of use to the user and does not require the company to provide insurance for the user.  Standard motor vehicle insurance policies and homeowner’s or renter’s policies in Indiana do not cover a scooter user’s liability for property damage or bodily injury he or she causes while operating an electric scooter.  Before using a scooter, a user should review his or her auto policy and homeowner’s (or renter’s policy) to determine if the policy provides such coverage and to discuss such coverage with an insurance agent.  If the policies do not provide coverage, the user should request an endorsement that would cover liability for any injury or damages that may arise out of the rental and use of a scooter.

[1] One company’s contract contains an insurance provision that states the company will provide the insurance required by law for a “vehicle.”  However, the company provides ride sharing autos as well as scooters, and the term “vehicle” is defined in the contract, and does not include the company’s electric scooters.

[2] Indiana Code § 9-13-2-9.2 (effective July 1, 2019) excludes electric foot scooters from the definition of motor vehicle subject to financial responsibility and other motor vehicle statutes.

[3] See e.g., Galvino v. Amica Mutual Ins. Co., 417 N.E.2d 34 (Mass. Ct. App. 1981); Ryan v. State Farm Mut. Ins. Co., 921 N.E.2d 458 (Ill. Ct. Ap. 2009).

[4] See www.indy.gov/activity/shared-mobility-devices “Guidelines for Users: Where to Ride.”

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Posted on Jul. 23 2019 , by Laura S. Reed