Insurance Academy

Guest Post: Who Is Liable When No One Is Driving? Part 3

By | February 28, 2018

We are grateful for friend of the Academy, Christopher J. Boggs, CPCU, ARM, ALCM, LPCS, AAI, APA, CWCA, CRIS, AINS, Executive Director, Big “I” Virtual University who provided this blog series about autonomous vehicles.

In the prior two parts, Chris set up the idea of an automotive generation and then the basis of legal liability in an age of increasing autonomy. Time to get into part 3…

Assigning Liability During the Progression Towards Autonomy

Warning, this is an oversimplification of legal liability assignment. An assumption is made in this initial discussion that the driver and/or the vehicle caused the accident and is, what the industry calls, “at fault” for the injury or damage. Each level, or phase, of transition is considered:

  • Driver-controlled with autonomous assistance (Phase 1): The driver is still primarily in control and is responsible for using the technology to make better decisions. Because the driver is in control, legal liability is assigned to him or her.
  • Autonomous availability of key functions (Phase 2): The driver shares control of the vehicle – with the vehicle. However, the driver must make the decision when he should turn control over to the vehicle. In some situations, even if the vehicle is equipped for the conditions, the best decision is for the driver to take charge. If the driver failed to act as a reasonable and prudent person would in the same situation, he may be found legally liable because he didn’t take control away from the vehicle in unusual situations. But consider the possibility for an alternative decision. Might liability be placed upon the driver because she took control away from the vehicle when the vehicle may have been better equipped to address the situation?
  • Optional vehicle autonomy (Phase 3): At this transitional phase, it may be proven that for many, if not most, situations, the vehicle is much better able than the human to operate safely. However, there are still situations in which the human must take control, such as in locales that do not have the necessary infrastructure and in complicated driving situations. If the driver fails to take control when deemed prudent by the court, he may be held legally liable for any injury or damage because he let the car decide. And like stated above, is there a possibility that the driver could be held legally liable because he took control away from the car? But this level adds a new twist, the technology fails. If it is proven that the driver was correct in allowing the vehicle to be in control, but the car still caused an injury or damage; what then? Who is assigned liability? Is it the manufacturer? Is it the software company (if different than the manufacturer)? On the garage that last worked on the program? Or is it assigned back to the owner because the manufacturer, software company or other entity had her sign a contract requiring her to indemnify and hold them harmless for any injury or damage resulting from the failure of the technology? Or will the courts or government step in and protect these entities from liability? More questions than answers.
  • Infrastructural technologically-limited autonomy (Phase 4): The driver may be found legally liable only in those situations when the car warns him or her that they are entering an area where the technology doesn’t support the fully autonomous use of the vehicle. If the driver fails to take control, she will likely be held liable for injury or damage caused as a result. But again, what if the technology fails? and
  • Fully autonomous (Phase 5): A reasonable assumption is that no liability will be placed on the “passenger” (as there is no driver). If, and some say this is a big “IF,” the vehicle is involved in an at-fault accident, the technology is at fault. But again, who would be assigned blame? The manufacturer, the software company, the municipality (for failure to maintain the infrastructure), the high-tech garage that worked on the computer last? Or, will owners be asked to contractually protect these entities?

As drivers have or take less and less control, liability may shift. Initially, driver and vehicle share responsibility for vehicle operation (with more and more responsibility moving to the vehicle as we progress through the phases). Whether the driver/owner is held legally liable or not may depend on the decisions the driver makes to give up or take control of the vehicle.

Once the car/computer is in total control, who is assigned liability if/when an accident occurs remains a mystery. How many defendants might be on the stand? And how long might it take to decide who is responsible? And the last question, how long might the injured party have to wait before being indemnified?

As stated, the above is a simplified scenario. A more typical scenario during these transitional phases will likely involve vehicles at different phases of this transition. Because of the concept and application of automotive generations, one vehicle may be a “phase 2” vehicle and the other a “phase 4” vehicle. When two levels of technology are involved, assigning liability may become more complicated. Technogeeks are guaranteed to assert that the vehicle with the highest level of technology is certainly the victim of the vehicle with the lowest level of technology. On the surface, this sounds plausible, but both phases (“2” and “4”) still require human intervention, though at different points. Because humans are involved, there still exists the question of who is legally liable. Plus, the technology may fail (I just heard a disturbance in the “force”).

Ultimately, assigning legal liability may become more difficult and take longer.

Next week: Not an Overnight Change

Christopher J. Boggs, CPCU, ARM, ALCM, LPCS, AAI, APA, CWCA, CRIS, AINS, is Independent Insurance Agents and Brokers of America (IIABA or the Big “I”) Virtual University executive director. He joined the Big “I” team in November 2016. His current duties involve researching, writing, and teaching property and casualty insurance coverages and concepts to Big “I” members and others in the insurance industry.

About Christopher J. Boggs

Christopher J. Boggs joined the insurance industry in 1990. He is currently the Executive Director, Big I Virtual University and former Vice President of Education for Insurance Journal's Academy of Insurance. More from Christopher J. Boggs
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