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November 29, 2020

Who Is Liable When a Driverless Car Crashes?

Summary:

How should insurers think about the liability for AVs? Using history as a guide, it's possible to make reasonable guesses at some of the answers.

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Now that truly autonomous vehicles (AVs) are starting to appear on roads, the insurance industry will be called on to perform its usual role as an enabler of innovation: Insurers will quantify the risks and likely cover much of it.

But how should insurers think about the liability for AVs? Will legislatures specify who is responsible for which problems? Will regulators? Will the courts? What principles will guide the decision makers? Where will liability fall?

Using history as a guide, it’s possible to make reasonable guesses at some of the answers.

An interesting analysis in Fortune argues that the courts will set the rules, applying long-standing principles to try to sort through the issues in the new environment.

The process will thus be messy, and some of the arguments made in court will initially be idiosyncratic. The article notes that, in the 1930s and 1940s, people who were hit by hired taxis sometimes sued the passengers rather than the driver or the driver’s employer. That approach never got traction in the courts and seems silly today, but you can be sure that some similarly odd-sounding theories will be tried in AV cases before being discarded.

The article argues that clear principles will gradually emerge. One is obvious: that the manufacturer will be responsible for a clear error, the software equivalent of having a tire fall off a car. But the two other standards were more subtle:

–A court will ask whether the AV performed better than a competent, average driver. That question may not apply just to the circumstances of the accident and the specific system or component that may have been involved in causing a collision but may also be a general question about the performance of the AV versus a human driver. The U.S. National Highway Traffic Safety Administration made that sort of general assessment of safety when it cleared Tesla’s Autopilot system of responsibility for a fatal crash in 2016. The temptation, of course, will be to compare an AV with a perfect driver — aren’t computers supposed to be free of error? Instead, the NHTSA is taking the position that anything that raises the average competence is a societal good. And a comparison to an average driver would be good news for the manufacturers of AVs and for those that insure them.

–The court will also ask whether an AV performed better than an AV did previously in a similar situation. A key promise of AVs is that they are always learning, and not just from an individual car’s experience but from what has happened to every car in the fleet. So, courts will hold manufacturers responsible for not making the same mistake twice.

The potential revenue for insurers from AVs is enormous. A recent report from Accenture and the Stevens Institute of Technology estimates that, even as AVs slash premium for personal auto coverage, product liability will be one of three new revenue streams that will generate $81 billion in premium between now and 2025. (The other two opportunities are in the new cyber risks that come along with AVs and in the potential liabilities associated with the infrastructure that will support AVs.)

The law will take shape slowly. It always does. There will be surprises along the way. There always are. But the size of the product liability opportunity, plus the beginnings of answers on legal principles, suggests that insurers should start working now to be prepared as the opportunity unfolds.

Stay safe.

Paul

P.S. Here are the six articles I’d like to highlight from the past week:

OnStar: Next Step for OEM Partnerships

Insurers hope to create a new way to collect driving data that’s easier for the driver than installing a device or downloading an app.

COVID-19 Is No Black Swan

There were clear warnings about COVID from credible institutions. The real issue is how we are going to deal with “grey rhinos.”

ESG: Doing Well by Doing Good

Insurance is at the forefront of the environmental, social and governance movement, which may usher in a Second Age of Enlightenment.

P&C Claims: 4 Themes for the Future

The extraordinary events of 2020 have accelerated four themes: automating operations; AI for insight; augmenting experts; and new ecosystems.

Advice to Early-Stage Startups on Pricing

Your pricing is a marketing tool that announces how you want potential clients to think of your offering.

How AI Transforms Risk Engineering

“AI could contribute to the global economy by 2030, more than the current output of China and India combined.”

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About the Author

Paul Carroll is the editor-in-chief of Insurance Thought Leadership. He is also co-author of Billion Dollar Lessons: What You Can Learn From the Most Inexcusable Business Failures of the Last 25 Years and the author of a best-seller on IBM, published in 1993. Carroll spent 17 years at the Wall Street Journal as an editor and reporter; he was nominated twice for the Pulitzer Prize. He later was a finalist for a National Magazine Award.

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