Publications

Navigating the Autonomous-Vehicle Liability Waters

5/8/2018 Articles

While experts debate how quickly autonomous vehicles (AVs) will take over our roads, there is little doubt they will be a fixture in the next decade. Fully self-driving vehicles are predicted to substantially reduce the accident rate, given the dominant role of human error in most crashes today.

But there still will be accidents. And where there are accidents, there are plaintiffs’ lawyers. But who will these lawyers sue, and how will the defendants insure their liabilities?

The removal of human culpability in AV accidents necessarily will mean fault for those accidents that do happen shifts to auto manufacturers. As one commentator succinctly stated, “(M)anufacturers are likely to have a bigger slice of what is likely to be a smaller pie” of crash liability. Auto manufacturers such as Volvo and Mercedes already have agreed to accept liability to varying degrees if their AVs cause accidents.

But the buck will not stop with the auto manufacturer. A complex network of mechanical and electronic systems already makes vehicles complicated, and AVs will be even more complex. All their computer-based and electronic components and systems, from sensors and lidar technology to software designed to empower split-second decision making, ultimately will play roles in AV crashes.

While all these parts and systems will make it hard to determine the cause of an AV crash, AVs will have telematic tools that produce, record and transmit in real time an unprecedented amount of data that will help reconstruct why any particular crash occurred.

Designers and suppliers of those parts and systems should proactively and deliberately consider their liability exposure. In some cases, certain traditional component parts suppliers probably can rely to a large degree on their existing product-liability insurance. But they should be talking with their insurance broker about what changes or enhancements to their existing programs are necessary to protect them from AV crash liability.

The insurance programs of designers and suppliers of innovative and nontraditional car parts or systems, including software, will require special attention. For example, this may be a software developer’s first foray into auto design and manufacturing. That developer likely has some form of technology errors and omissions liability (E&O) insurance to cover claims arising out of its negligent design or implementation of a software product. But that E&O policy likely is not designed to cover the types of damages normally associated with car accidents – property damage and bodily injury.

The software developer also may have commercial general liability (CGL) that covers property damage and bodily injury liability, but the CGL policy might broadly exclude liabilities arising out of car accidents. Without carefully matching its insurance coverage to its likely liability exposure in light of the integral role its product is playing in AVs, the software developer could find itself with massive uninsured liability exposure.

On top of that, AV cybersecurity risks are sure to be big. Not only will AVs be targets for hackers to commandeer or shutdown, AVs also will record large amounts of their owners’ and passengers’ personal information and other location information. Societal privacy expectations and standards certainly will adapt to these new developments, but what the law and AV owners and passengers will view as acceptable is sure to change in unexpected ways.

One need not look further than the recent Cambridge Analytica scandal and the fury directed toward Facebook to realize new technologies and their unexpected applications can quickly put companies in the middle of a debate about how an individual’s information should and should not be collected and used. Just like Facebook and other internet companies today, AV manufacturers and suppliers will be confronted by the temptation to monetize the incredible profusion of user data they will have access to.

Cyber-insurance policies are adapting to these risks, but not quickly enough in some instances. And many of the risks are unknown. Accenture recently estimated insurers will collect $12 billion in cyber-liability insurance premiums for AVs in 2025, five times the amount for product liability. Companies will need to pay very close to attention to developments in both the law and the insurance industry relating to cybersecurity and privacy risks, and carefully negotiate their cyber-insurance policies each year in light of those developments.

AVs stand to bring about many positive changes to our society. Players in AV development, manufacturing and operations must plan for the reality that the law governing, and the insurance protecting, them will be changing too.

Firm Highlights

Publication

New PFAS Listing Under Superfund Will Lead to Major Expansion of Liability

On April 19, 2024, the U.S. Environmental Protection Agency (USEPA) announced its final rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under Section 102(a) of the Comprehensive Environmental Response, Compensation...

Read More
News

Farella Braun + Martel Earns San Francisco Green Business Recertification

Read More
Event

AI and Privacy: What Every Company Needs to Do Today

Sushila Chanana and Benjamin Buchwalter will discuss "AI and Privacy: What Every Company Needs to Do Today' at the ACC 2024 Privacy Summit.  This session will introduce basics of AI governance, such as ownership...

Read More
Publication

California Regulation of Charitable Fundraising Platforms Part 2 - Reporting Due Diligence, Recordkeeping, and Disclosure Rules

Welcome to  EO Radio Show - Your Nonprofit Legal Resource . This episode covers the provisions of California’s Charitable Fundraising Platforms law (Gov. Code, § 12599.9) relevant to all covered charitable fundraisers and fundraising...

Read More
News

Farella Awards 2024 Diversity Scholarships to Bay Area Law Students

Farella Braun + Martel’s Diversity, Equity, Inclusion + Belonging Committee is pleased to announce the recipients of our 2024 Diversity Scholarship grants totaling $45,000 to Bay Area first-year law students Marcus Albino, Saamia Haqiq...

Read More
Publication

New PFAS Federal Drinking Water Standards Create Major Liability and Litigation Risk

The United States Environmental Protection Agency has released a final regulation setting individual drinking water maximum contaminant levels (MCLs) for five per-and polyfluoroalkyl substances (PFAS). These MCLs are incredibly stringent due to EPA’s stated concerns...

Read More
Publication

Copyright Law for Influencers and Brands: How Content Creators and Companies Hiring Them Can Navigate Copyright Law for a Successful Partnership

In recent years, the advent of the social media “influencer” has revolutionized advertising. Companies often partner with influencers to market their products, hoping to tap into the influencer’s devoted audience. Likewise, influencers create certain content...

Read More
News

JPMorgan Chase Accuses TransUnion of Stealing 'Trade Secrets'

Intellectual property practice chair Eugene Mar provided expert commentary to American Banker for the article "JPMorgan Chase Accuses TransUnion of Stealing 'Trade Secrets'." In the article, he said: "By filing this as a trade...

Read More
Event

Unplugged: The Renewable Energy Speaker Series - The IRA's Environmental Justice Incentive Programs

Join Farella Braun + Martel and the Environmental Law Institute for the relaunch Unplugged: The Renewable Energy Speaker Series with Farella’s John Ugai and guest speakers Miana Campbell with U.S. Department of Energy, Maria Castillo with...

Read More
News

Burdened by Debt, Savvy SF Office Owners Get Creative

Restructuring, insolvency, and creditors rights partner Gary Kaplan provided expert commentary in The San Francisco Standard article, "Burdened by Debt, Savvy SF Office Owners Get Creative." In the article, Gary explained that in most cases...

Read More