Subrogating Automated Driving Systems And Autonomous Vehicle Failures

Autonomous CarImagine beginning your day with a cup of coffee in the car on the way to work, watching the morning news from a holographic projection on the windshield while making notes in preparation for a 9:00 a.m. meeting. All this while your car follows a preset route, automatically changes lanes to avoid slower vehicles, after having driven your children to school. Your vehicle’s information system reminds you of your day’s agenda and turns on the crockpot at home while the car looks for a best place to park. After the car parks itself, you leave it without locking it with a key – the car will unlock itself when sensing your biometric identification around and will even pull around and pick you up in front of your office. Everything works well and the daily commute to and from work becomes ideal—until it isn’t. When catastrophic claims are paid as a result of a traffic accident resulting from a failure of an automated driving system (ADS) and subrogation enters the picture, it is no longer a simple question of who had the right-of-way and who failed to yield. Products malfunction and computers fail. Simple auto subrogation has now entered the more complex and exponentially more expensive world of product liability. Automobile accident subrogation is rapidly changing, and the insurance industry will need to change with it.

The future starts today, not tomorrow,” Pope John Paul II famously said. He was right. The evolution of automotive technology has evolved at light speed and a future with automated driving systems that will completely manage the task of driving is right around the corner. Currently, no vehicles for sale in the U.S. are “self-driving.” Advanced ADS systems such as Tesla Autopilot, Ford BlueCruise, and GM SuperCruise are not “self-driving.” Rather, they are referred to as “Level 2 capable”, where the driver can briefly ignore some driving responsibilities but must be alert and always ready to take over. J.D. Power Magazine online describes the levels of autonomous driving as follows:

If a vehicle has Level 0, Level 1, or Level 2 driver support systems, an active and engaged driver is required. She is always responsible for the vehicle’s operation, must supervise the technology at all times, and must take complete control of the vehicle when necessary.

In the future, if a vehicle has Level 3, Level 4, or Level 5 automated driving systems, the technology takes complete control of the driving without human supervision. However, with Level 3, if the vehicle alerts the driver and requests, she takes control of the vehicle, she must be prepared and able to do so.[1]

The majority of vehicles on the road are level 0, but a rapidly growing number of cars feature Level 1 and 2 ADS systems. The leap from Level 2 to Level 3 automation is so significant that no Level 3 systems are legal to use on American roads. But they are almost here. The National Highway Traffic Safety Administration (NHTSA) is feverishly preparing for fully automated cars and trucks that drive us instead of us driving them. Fully automated safety features and autopilot capability are expected to be here in the next four or five years. By 2026, the autonomous vehicle market (currently at $54 billion) is projected to top $500 billion. Driver assistance technology has progressed slowly but steadily:

  • 1950 to 2000: Cruise Control, Seat Belts, Anti-lock Brakes
  • 2000 to 2010: Electronic Stability Control, Blind Spot Detection, Forward collision Warning, Lane Departure Warning
  • 2010 to 2016: Rearview Video, Automatic Emergency Braking, Lane Centering Assist, Rear Cross Traffic Alert
  • 2016 to 2025: Lane Keeping Assist, Adaptive Cruise Control, Traffic Jam Assist, Self-Park
  • 2025 and Beyond: Fully Automated Safety Features, Highway Autopilot[2]

The NHTSA is preparing for the fully automated vehicles and they accepted comments on the development of administrative safety for ADS systems until February 1, 2021. They have published several research reports, guidance documents, and notices of advanced rulemaking. Their main task is to determine which requirements of the existing Federal Motor Vehicle Safety Standards (FMVSS) are relevant to the safety needs of ADS-equipped vehicles without traditional manual controls, and then adapting or developing the requirements and the associated test procedures so that the requirements can effectively be applied to the novel vehicle designs that may accompany such vehicles without adversely affecting safety.

Driverless AutosExperts tell us that autonomous vehicles will improve road safety and reduce injuries, death, and property damage. That is good news for the insurance industry and subrogation professionals. The average size of claims, however, could increase significantly, meaning fewer fender benders and more catastrophic injuries and deaths, subrogation of which will require immediate investigation, experts, and product liability lawyers to both defend on the liability side and subrogate on the recovery side. What once were simple auto accidents will now become infinitely complex product defect cases involving possible manufacturing or design defects in Car-to-X Communications systems or something as simple as a dirty sensor. Claims professionals will need to become familiar with the technology involved and develop a relationship with qualified automotive experts. As H.G. Wells famously said, “Adapt or perish, now as ever, is nature’s inexorable imperative.”

From the nuances of advanced automated driver systems to cyber security; there will be failures and auto manufacturers with almost infinite resources may be hesitant to pay damages caused by a design defect whereas a liability carrier in years past might have simply and promptly paid a subrogation claim because their driver was distracted by the entertainment system or was putting on makeup at the time of an accident. In 2015, hackers wirelessly accessed the braking and steering system of a Jeep through its onboard entertainment system and forced it to stop on a St. Louis highway while driving at 70 mph. Autonomous vehicle manufacturers are struggling to interface autonomous vehicles with the traditional human-driven vehicles on the highway, and an entire insurance underwriting industry is struggling to evaluate the risks which everybody knows are there. In 2016, for example, Tesla’s autonomous vehicle test resulted in serious accidents and personal injuries.

Subrogation professionals can expect liability adjusters in the years to come to add an entirely new set of excuses to their claim denial lexicon, including “Sudden Emergency.” As you may know sudden emergency is a defense that a defendant can use to escape liability. In most jurisdictions, when the defendant invokes this defense, she must prove four elements:

  1. The defendant faced a situation that arose unexpectedly and suddenly.
  2. The defendant was not at fault for the situation.
  3. A reasonable person would have concluded that the situation was serious and that the situation required the defendant to act without taking time to deliberate.
  4. The action that the defendant took was the same action that a reasonable person would have taken.

Expect negligent drivers to increasingly blame their cars for causing accidents. A tortfeasor alleging that it was the vehicle which caused the accident does not have the burden of proof as to this defense of sudden emergency; rather, he has simply the burden of producing evidence explaining that the accident was due to something other than defendant’s negligence. That could mean simply saying that the car’s self-driving features were engaged but failed to work properly. In most jurisdictions, the tortfeasor’s burden is simply the burden of going forward with this novel excuse but is not the burden of proof. It will be the subrogation professional who has the burden of proving that the tortfeasor was negligent. As you can see, simply having autonomous driving features available on the tortfeasor’s vehicle will make blaming the car simply too convenient to pass up. Having an automotive expert who can disarm the flimsy defense will become necessary in even the simplest of intersection collision cases.

Amazing ADS advancements are being revealed every day. This year, Motor Trend reports that Honda Motor Company announced its Legend Hybrid EX Honda Sensing Elite as the first production vehicle capable of Level 3 conditional automated driving as approved by the Japanese government. Referred to as Honda Sensing Elite with Traffic Jam Pilot, this advanced ADS system allows the vehicle to self-drive in certain situations, including on freeways. When used in conjunction with lane keeping assist, the vehicle can be operated hands-free with Traffic Jam Pilot. With the Active Lane Change function activated, the vehicle will switch lanes and even pass vehicles without driver assistance. Honda is so confident in the system that it does the unthinkable and says the driver “does not have to pay attention to the road until prompted to do so.” After the prompt, the driver must be ready to take back control immediately or it will eventually slow and stop the car after multiple alerts.

In 2017, Audi developed and hailed a Level 3 system similar to Honda’s for its Audi A8 sedan. This ADS was called Traffic Jam Pilot just like Honda’s. This technology worked on divided highways, and claimed it would accelerate, stop, and steer by itself at speeds of up to 37 mph, at which point the system reverted to a Level 2 adaptive cruise control ADS. The plan was to release this technology in countries which approved it, but most government agencies weren’t able to react quickly enough, and Audi had to give up its plans to offer it on the A8.

Tesla SignTesla has developed an ADS which is calls Autopilot. It is activated when traffic-aware cruise control and lane centering features are turned on. When Autopilot is turned on, the car is technically capable of mapping route to a given destination and changing lanes accordingly. Autopilot is the most ADS system available in the country, but it is still only a Level 2 system requiring constant driver attention. There have been numerous crashes where driver inattention or deliberate misuse of Autopilot has allegedly been a contributing factor.

The features available on the new Mercedes E-Class, some of which are standard, some requiring the Driver Assistance Package, are more the stuff of H.G. Wells than Gottlieb Daimler. They include:

  • Drive Pilot’s adaptive cruise control (Distronic) and Steering Pilot (lane keep assist) track the car in front at speeds up to 130 mph (210 kph) and can stay lane-centered at up to 81 mph (130 kph). It tracks nearby vehicles and senses highway lane markings.
  • Active Lane Change Assist is a radar- and camera-based system that semi-automates lane changes. Flip the directional signal and the car waits two seconds and then changes lanes on its own.
  • Active Brake Assist with cross-traffic function similarly has “extended speed thresholds” for detecting cars and pedestrians. The car brakes if it detects crossing traffic that you aren’t slowing for and will initiate advance braking if it senses you’ve come upon the tail end of traffic jam, where there’s no room to maneuver.
  • Evasive Steering Assist works with pedestrian detection to help the driver steer around a pedestrian and then apply steering wheel torque (force) to recover and get the straightened out afterwards.
  • Active Blind Spot Assist (blind spot detection), in addition to highway speed warning, can warn of possible city-speed lateral (side) collisions.
  • Pre-Safe Sound emits a sharp “interference signal” through the sound system if it detects an impending collision. It triggers a biological reflex in the human ear that prepares the occupants for the sound of the collision if it happens.
  • Remote Parking Pilot pulls the car out of a garage or parking space using a smartphone app, with the driver outside. This lets big cars park in narrow spaces and tiny garages.
  • Car-to-X communication is the first car with integral car-to-X, meaning car-to-anything communications where a connected car ahead helps cars behind “see” around corners or through obstacles.

Admittedly, the Drive Pilot will be used primarily on highways and country roads. The new Mercedes-Benz E-Class technically doesn’t “drive itself,” but it sure seems like it. The new technology promises a future where computers drive cars, rather than humans, eliminating error and reducing accidents and injuries exponentially. Between now and then, however, we will have a prolonged “trial” period where these “self-driving” cars interact with and attempt to anticipate the foible of human negligence.

Mercedes-Benz’s Distronic Plus system operates by using radar sensors that scans traffic for stopped or slowing traffic. If the system senses that a collision is imminent, its PRE-SAFE Brake feature automatically initiates up to 40% braking power, audibly alerts the driver, and engages the PRE-SAFE system. When the driver brakes, 100% braking pressure is instantly applied. If the driver fails to respond, the system can apply full braking on its own, serving as an “electronic crumple zone” to help reduce the intensity of a collision. An April 2012 Highway Loss Data Institute (HLDI) Bulletin credited Distronic Plus with a 14% reduction in property damage claims. Vehicle-to-vehicle (V2V) communication technology will allow your car to continually download information uploaded from other “intelligent” vehicles from the Cloud, informing it of slow-downs and accidents which are unseen to the human eye around the corner or over a hill.

These vehicles boast features that would be the envy of George Jetson, with autonomous-driving capabilities that let a car go farther on its own before the driver takes over and stays on track on curvier roads. Trial lawyers are chomping at the bit and subrogation professionals should be right there alongside them. Subrogation professionals must be able to understand and diagnose potential ADS failures which contribute to vehicle accidents and proceed accordingly. Product liability subrogation counsel may be necessary where previously two claims handlers argued about who had the red light. This changes the game completely.

Driverless Car LitigationMotor vehicle accidents claimed over 33,000 lives in 2012 and have proven to be a very lucrative source of business for trial lawyers and subrogation professionals. More than ninety fatalities every day testify to the simple fact that humans make mistakes. All too often they fall asleep, text while driving, drive while intoxicated or under the influence, look away from the roadway, lean down to pick up things off the floorboard, rummage through their purses, put on makeup while driving, and, by and large, use poor judgment. Vehicle automation in the form of anti-lock brakes, air bags, and other passive safety features, has been helping save lives for years. This isn’t the first time the auto industry has declared “The future is here.” A brochure for 1958 Chryslers and Imperials touted a new feature called “Auto-Pilot,” which was advertised as “an amazing new device that helps you maintain a constant speed and warns you of excessive speed.”

Autonomous driving means another growth period involving the uncomfortable interface between computer-driven vehicles and older models driven by potential tortfeasors. In the horse and buggy era, as the number of vehicles increased, the rate of deaths and injuries caused by vehicular accidents rose tremendously. By 1917, Detroit had 65,000 cars on the road, resulting in 7,171 accidents and 168 fatalities. Growth periods mean lots of subrogation potential; provided insurers and claims professionals are alert to the potential and act quickly by engaging subrogation counsel. Hiring the usual cut-rate expert vendor which assigns an investigator who is not qualified to testify in a product liability case might be a waste of time and money in a matter which calls for immediate retention of an expert who is qualified to and will be allowed to testify both as to the existence of a product defect but also a reasonable alternative design which would have avoided the crash.

Lawyers are trained to look at a tragedy and think, “how could this have been prevented?” When they have their answer, they draft their complaint. With so many moving parts and unproven technology, the answer to the lawyers’ question when an autonomous vehicle is involved will often lead them to blame the product, rather than the driver. It remains to be seen if legislatures, in an effort to encourage the new technology, may well pass tort reform measures protecting the manufacturers of autonomous cars.

Strict product liability law provides the legal remedy when a defective product (defect in design or manufacture) causes damage, injury, or death. Product manufacturers have a legal duty to carefully design their products in a way that reasonably foresees risks of injury to those using their product reasonably. If little or no driver interaction is required with driverless cars, a myriad of conditions or combination of conditions could combine to cause an accident – even if it involves a foreseeable human operator panicking and interfering with the vehicle’s automation. Consumers may even begin to rely too much on these early autonomous vehicles, leading to collisions resulting from inattentiveness.

Gary Wickert recently appeared on a national radio program broadcast on Ringler Radio entitled, “Driverless Cars Litigation.” The twenty-minute segment discussed how litigation would be affected by the proliferation and advancement of autonomous vehicles and driverless cars. It can be listened to HERE.

The number of theories of legal liability available to trial lawyers and subrogated insurance carriers increases exponentially as the technology of these new “self-driving” cars grows. It will require thinking outside of the box. Claims professionals will need to become familiar with the technology involved and develop a relationship with qualified automotive experts. As Robert Greene—an American author known for his books on corporate strategy—famously said, “The future belongs to groups that are fluid, fast, and nonlinear.

If you have any questions regarding autonomous vehicle subrogation or subrogation in general, please contact Gary Wickert at [email protected].

[1] Choksey, Jessica and Wardlaw, Christian Wardlaw, Levels of Autonomous Driving, Explained, J.D. Power. May 05, 2021, https://www.jdpower.com/cars/shopping-guides/levels-of-autonomous-driving-explained.

[2] According to the National Highway Traffic Safety Administration (NHTSA). https://www.nhtsa.gov/technology-innovation/automated-vehicles-safety#topic-road-self-driving

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Gary L. Wickert
Partner

Gary L. Wickert is an insurance trial lawyer and partner with the law firm of Matthiesen, Wickert & Lehrer, S.C. Gary has nearly four decades of litigation experience and is regarded as one of the world’s leading experts on insurance subrogation. He is the author of several subrogation books and legal treatises and a national and international speaker and lecturer on subrogation and motivational topics.