WHO IS TO BLAME? THE QUESTION THAT’S HOLDING UP LEGISLATION AUTHORIZING THE USE OF MORE AUTONOMOUS VEHICLES ON U.S. ROADS

The push towards autonomous vehicles from tech and automobile companies in the United States remains strong. In the wake of two major accidents involving self-driving cars, legislators and trial lawyers alike have stalled legislation that would ramp up testing and production of autonomous vehicles until one question is answered: who is liable in the event of a self-driving car accident? 

PRODUCTS LIABILITY OR NEGLIGENCE?

Usually in an accident, you can objectively determine that a human was at fault, but what happens when a fully self-driving vehicle hits a pedestrian or another vehicle? The fault may lie with the manufacturer and the software associated with the vehicle allowing the victim to sue for products liability, or the fault may lie with the owner depending on if he had control of the vehicle or failed to install necessary updates allowing the victim to sue for negligence. 

Consumers are right to wonder who will be held responsible for the defective computer code which operates a motor vehicle they are in when it kills or maims another human being,” said Jason Levine, executive director of Center for Auto Safety. “Who will be responsible for preventable tragedies, whether it a passenger, or vehicle owner, or the manufacturer, or an individual software engineer will be determined by choices made by Congress.” 

THE INHERENT FRICTION OF LIABILITY

The Senate has not heard a convincing answer from legislators that fully addresses this complex liability question. Earlier this month, a move to merge a long existing House bill with must-pass legislation was shot down on the eve of a committee vote. Safety groups and trial lawyers objected to the initiative from some manufacturers that would include language that would prevent consumers from suing or forming class-action lawsuits. Instead, consumers would have to submit disputes to binding arbitration. 

Sarah Rooney, senior director of federal and regulatory affairs for the American Association for Justice, said “unless legislation prevents manufacturers from doing so, they will insert extremely broad forced arbitration clauses into their contracts, blocking consumers from meaningful remedies if they are hurt or their privacy violated. Even pedestrians’ claims could be kept out of court.” 

Self-driving car supporters have argued that existing tort law contains principles for allocating fault and apportioning liability. 

Decades of motor vehicle law have been applied to countless new technologies in the past and have already been applied to AV’s,” said Ariel Wolf, general counsel to the Self-Driving Coalition, which represents companies such as Ford Motor Co., Uber, Lyft, and Waymo. 

RECENT CRASHES SUPPORT CONGRESS’ DECISION TO STALL LEGISLATION

The importance of lawmakers addressing the liability question is highlighted by several highly publicized crashes involving self-driving vehicles. In 2018, a self-driving vehicle that was being tested by Uber was involved in a crash in Tempe, Arizona that resulted in the death of a pedestrian who was crossing the road. A National Transportation and Safety Board (NTSB) investigation revealed that the vehicle’s system design failed to include the possibility for jaywalking pedestrians. 

Tesla has seen a surge in crashes in their vehicles equipped with its Autopilot – a system that provides only a small level of autonomy requiring the driver to always pay attention and leave their hands on the steering wheel. Tesla’s marketing techniques for its technology then came under scrutiny for misleading its customers using words such as “Autopilot” and “Full Self-driving” which are alleged to be causing fatal results. 

THE ROAD AHEAD

Missy Cummings, director of Duke University’s Humans and Autonomy Lab, believes that while the technology is still in development, Congress should not hastily add or reduce regulations for self-driving cars. “Without explicitly saying it, a lot of companies are realizing that self-driving cars are much further off than we initially realized,” she said. 

However, Wolf is more optimistic of the near future and what benefits self-driving cars can bring to the U.S.  “With an estimated 36,000 lives lost on U.S. roads last year, autonomous vehicles offer a transformative opportunity to save lives, unlock new economic and mobility opportunities, and promote American leadership an innovation,” he said. 

New legislation on both the Federal and State level is continuously being introduced. A complete list is available through the National Conference of State Legislatures (NCSL) (ncsl.org)

INSIGHTS FOR GF CLIENTS

Governor C.L. “Butch” Otter signed an executive order on January 2, 2018, to create the Autonomous and Connected Vehicle Testing and Deployment Committee to identify relevant state agencies to support the testing and deployment of autonomous and connected vehicles, discuss issues such as vehicle registration, licensing, insurance, traffic regulations, and vehicle owner or operator responsibilities and liabilities under current laws in Idaho. 

Not all autonomous vehicles are created equal, however. Self-driving vehicles can be broken into 5 levels of autonomy:

  • Level 0 – no automation
  • Level 1 – the vehicle has driver assistance features such as automatic breaking or hands-free parking
  • Level 2 – the vehicle has partial automation, such as automatic lane centering, but the human driver must be alert at all times
  • Level 3 – the vehicle has conditional automation, such as conditional self-driving capabilities, but a backup driver must be available
  • Level 4 – the vehicle has high automation, such as conditional full self-driving capabilities without human intervention
  • Level 5 – the vehicle has full automation, such as non-conditional full self-driving capabilities without human intervention

Short-term concerns for insureds also include issues outside the liability question, such as cybersecurity. All companies, no matter their size, are susceptible to breaches of their vehicles in-cabin technology. This real threat was a large part of Congress’ incentive to pass the SELF DRIVE Act which includes a section about cybersecurity, requiring manufacturers to develop a written cybersecurity plan for their autonomous vehicles. 

How Might Autonomous Vehicles Change the Insurance Industry?

The long-term goal of autonomous vehicles is to make our roads safer by decreasing the number of auto-accidents per year. Lower insurance premiums for insureds would be the benefit of this, right? At least for now, this has not been the case. Because the technology is still being tested and the lines blurred between the levels of automation, lower premiums have not been reflected. This is not to say that premium payments will not decrease in the future. For example, Tesla is rolling out an insurance plan specifically designed for its vehicles with up to 20% lower rates than other insurance companies. Other autonomous vehicle companies are expected to follow suit which will create a competitive environment between manufacturers and insurance companies, encouraging low rates. 

In addition, autonomous vehicles promise to improve claims (while decreasing driver privacy) by providing more information than current telematics technology. After an accident, autonomous vehicles will be able to send an abundance of essential information to insurers improving both accuracy and efficiency in claims administrations.  

Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other issues facing your company.