Autonomous Vehicles: The New Technology Driving the Litigation Conversation

Abstract: So far, Congress has not been able to pass regulations governing the emergence of self-driving or autonomous vehicles. Twenty-one states and the United Kingdom are leading the way. As more of these vehicles take to the highway implications will emerge for the insurance industry. Auto insurance policies will have to determine how to insure against losses caused by nonhuman operators, commercial general liability policies will be affected when technology developers and car makers are sued for bodily injury and property damage arising from malfunctioning technology, and cyber policies could be implicated in the event of hacks or data breaches. The authors review these subjects and share their insights into what autonomous vehicle producers should consider when it comes to mitigating their risk.

Introduction

As autonomous vehicle technology has developed, so too have novel accompanying legal issues. Although federal regulation of autonomous vehicles has stalled, many individual states have enacted laws governing this new space. Lack of federal legislative guidance has left determination of legal issues related to autonomous vehicle technology largely with the states and the courts. In 2018, the United Kingdom passed nationwide legislation governing this emerging technology, which may provide guidance for what future U.S. law could look like. In the meantime, several cases pending in U.S. courts can shed light on how courts view legal challenges and issues related to this new technology.

U.S. Legislation

In 2017, Senator John Thune (R-SD) introduced the American Vision for Safer Transportation through Advancement of Revolutionary Technologies Act (the AV START Act), but it failed to pass the 115th Congress. The bill sought to mitigate cybersecurity risks, increase public awareness of the use of private data in vehicles utilizing autonomous technology, and establish federal oversight of autonomous vehicle safety. The AV START Act would have required manufacturers to send safety evaluation reports to the Secretary of Transportation before road testing autonomous vehicles. Additionally, the AV START Act would have established a committee under the Department of Transportation’s control to make recommendations regarding autonomous vehicle safety standards. Under the AV START Act, the federal government would provide oversight, but autonomous vehicles still would be regulated largely by state and local traffic laws.

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