Case · NJ App. Div. 2022 · 473 N.J. Super. 537 Malzberg v. Josey: Why New Jersey's Rideshare Law Stops at Food Delivery

The Short Answer

Malzberg v. Josey, 473 N.J. Super. 537 (App. Div. 2022), decided whether New Jersey's Transportation Network Company Safety and Regulatory Act applies to app-based food delivery. The Appellate Division held that it does not. The Act, and its $1.5 million underinsured motorist (UIM) requirement, applies only when an app connects a driver with a human rider. An Uber Eats driver injured on a delivery therefore could not claim that coverage from the delivery company's insurer, whose policy carried no UIM.

It is one published Appellate Division opinion, so it binds New Jersey's trial courts. It is not a New Jersey Supreme Court decision, and we found no Supreme Court ruling on the question.

Source: Malzberg v. Josey, No. A-2883-20 (App. Div. Sept. 27, 2022), full opinion (PDF).

The Facts

On June 30, 2017, Scott Malzberg signed up with Portier, LLC to deliver food through the Uber Eats app, using his own vehicle, a motorcycle. On August 17, 2017, he was making an Uber Eats delivery when a car driven by Caren Josey made a left turn onto the Route 17 entrance ramp in Hackensack and collided with him. He was thrown from the motorcycle and, in the court's words, "sustained significant injuries requiring multiple surgeries."

Josey's auto policy carried bodily injury liability of $15,000 per person and $30,000 per accident, and his injuries exceeded those limits. Portier had bought a business auto policy, but as the court put it, that policy "does not provide underinsured motorist benefits."

So Malzberg sued the delivery company's insurer for underinsured motorist coverage, arguing that the TNC Act required $1.5 million of it. The trial judge, Stephen L. Petrillo, granted summary judgment to the insurer on January 25, 2019. Malzberg appealed.

The Question

"[W]hether the Act ... applies to food delivery services, such as Uber Eats."

The court called it "the sole legal issue raised in this appeal" and "a question of first impression regarding the scope of the Transportation Network Company Safety and Regulatory Act." No New Jersey appellate court had answered it before.

What the Court Held

The Appellate Division agreed with the trial judge: "Judge Petrillo concluded that the Act applies only to the prearranged transport of persons and not to the delivery of food. We agree." It added that "[n]othing in the statutory text or legislative history of the TNCSRA suggests that the Legislature intended to regulate app-based food delivery services." (TNCSRA is the court's shorthand for the Act.)

The court affirmed, and closed narrowly: "All we can say for certain is that the TNCSRA in its present form does not apply to the circumstances of this case."

Why the Court Ruled That Way

1. The Act is built around riders. Its definitions of driver, rider and prearranged ride all turn on transporting a rider. The court found that "nothing in the definition section—or any other section of the Act for that matter—refers to the delivery of food."
2. Freight is carved out. Section 3 bars TNCs and their drivers from providing "freight service except as authorized pursuant to applicable law." The court read that as confirming that "freight services are governed by other applicable laws, not the TNCSRA."
3. "Related services" means services for a rider. The Act's definition of a driver mentions "related services." The court held that the phrase "presupposes a connection to arrange the transportation of a rider," giving examples like handling a rider's luggage, or a pet or service animal traveling with the rider.
4. An app alone isn't enough. To fall within the Act and its minimum insurance, "the app-based connection must be used to arrange a ride between a driver and a human rider."
5. The Act protects drivers, but only on rides. The court accepted that the law protects drivers and not just passengers, but only "those drivers who are in the process of arranging or providing a ride to a rider."
6. His vehicle couldn't have carried Uber riders anyway. The court noted that his motorcycle "does not meet the local vehicle requirements for driving passengers for Uber in New Jersey."
7. The contract warned him. The 2017 Uber Eats agreement, as quoted by the court, said his own insurance "may not afford" liability, collision, medical, PIP, uninsured or underinsured motorist or other coverage for deliveries, and that Portier was "not required to provide you with any specific insurance coverage for any loss to your Transportation Method or injury to you."
8. Filling the hole is the Legislature's job. Malzberg argued there was "a hole in the law created by the constant evolution of technology." The court answered that "it is not our place" to fill it.

Statute the court applied: N.J.S.A. 39:5H-2 (definitions) · N.J.S.A. 39:5H-3 (freight) · N.J.S.A. 39:5H-10 (insurance).

Lines From the Opinion Worth Quoting

Each line below is from Malzberg v. Josey, 473 N.J. Super. 537 (App. Div. 2022).

"The Act does not automatically apply, in other words, whenever someone uses an app to connect to a driver."

"[A]lthough 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 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." (footnote 7)

"In the final analysis, it is for the Legislature, not trial or intermediate appellate courts, to fill the void to which plaintiff alludes."

Source: full opinion, Justia.

If You Mix Rides and Deliveries

The court saw this coming. Footnote 7, quoted above, describes drivers who run several apps and switch between food and passengers in a day. New Jersey law protects that: a company "shall not restrict a driver's ability" to use another company's app.

What Malzberg means in practice is that the rules switch with the trip, not with the app. With a rider aboard, or on your way to one after accepting, the TNC Act's tiers apply. With food in the car, no New Jersey statute sets a minimum, and you get what the delivery company chooses to provide plus whatever your own policy covers.

Uber says it plainly: "Uber maintains separate policies for rides and deliveries. Your coverage depends on what type of trip you are on at that moment."

Your personal policy is a separate question. N.J.S.A. 39:5H-12's permission to exclude coverage is about TNC use, so whether your policy excludes delivery depends on its own wording. Some rideshare endorsements name delivery apps and some don't. Get it in writing before you count on it.

Our guide for delivery drivers walks through the options, and our page on Uber Eats insurance in New Jersey covers the app many drivers mix with Uber rides.

Sources: N.J.S.A. 39:5H-13(b) · N.J.S.A. 39:5H-12 · Uber delivery insurance page.

What the Case Does Not Decide

• It doesn't say delivery drivers have no insurance. Delivery apps provide some coverage by their own choice, and those terms can change.
• It doesn't say every personal policy excludes delivery, or that every delivery driver needs a commercial policy. That turns on your policy's wording, and some rideshare endorsements name delivery apps.
• It doesn't extend section 12's exclusion to delivery. That section is about logged-on TNC time and prearranged rides.
• It isn't a ruling on packages. The holding is about food. The court's reasoning (the Act covers human riders, and freight is left to other laws) would apply to package delivery too, but that's an inference, not a holding.
• It isn't a New Jersey Supreme Court decision. It is one published Appellate Division opinion.
• It doesn't tell you what your own policy covers. Only the policy's forms and endorsements do.

What Has Happened Since

The court noted a bill then pending, S. 486, for a "delivery network company driver for the prearranged delivery of goods." It did not become law. Bills to give delivery drivers similar protection have been introduced in Trenton, most recently in January 2026 (S3139 and A3568); none has passed.

One twist worth knowing. Pending bill A1507 would lower the TNC Act's $1.5 million UM/UIM requirement during rides, the same kind of coverage Malzberg sought, to New Jersey's personal minimum. It is pending, not law. We track it on our New Jersey rideshare law page.