March 22, 2018

The Wild West of Autonomous Vehicles and Insurance Defence Litigation

The Wild West of Autonomous Vehicles and Insurance Defence Litigation

Written by: Seth J. Kornblum



Prior to this week’s tragic news regarding a pedestrian fatality caused by an automated Uber vehicle, many insurance defence litigation lawyers were predicting the eventual extinction of motor vehicle accident litigation. These naysayers suggested that autonomous vehicles would eliminate most automobile accidents caused by driver error.  Over the coming decade, a challenge for the insurance industry will be in determining who is liable for accidents involving autonomous vehicles.

A closer look at the day’s events suggests that while, on the whole, the number of accidents may decline, the number of potential litigants will likely increase. Particularly in Ontario, which is considered one of the top jurisdictions in North America for vehicle production, and the only sub-national jurisdiction to have five major global automotive assemblers.

In addition, as the Highway Traffic Act, Ontario Regulation 306/15, which addresses automated vehicles, defined the term “drive” to include the operation of an autonomous vehicle (regardless of whether the vehicle is being operated automatically or manually), the potential exists for a driver to be liable even when not technically “driving” a vehicle. As such, it can be argued that the new frontier of autonomous vehicles increases the number of potential litigants for claims involving autonomous vehicles. In addition to traditionally suing the driver and owner of an automobile, new litigants likely include automakers, vendors, software engineers and vehicle maintenance professionals.  So, while the increase in autonomous vehicles may have the effect of reducing the number of accidents, the number of potential litigants will increase.

Further, as some have suggested that autonomous vehicles also require improved roads and infrastructure to guide such vehicles, the potential also exists for the inclusion of cities, towns, municipalities and provincial governments as defendants in such cases.

Further, the possibility exists that accidents involving autonomous vehicles may be caused by mechanical error. If so, this may lead to potential recalls and/or exercises in risk/benefit analysis (i.e., The Ford Pinto Case) and even more litigation, including the possibility of class action claims.

In addition to the potential increase in litigants, further questions will arise during that period of transition when there are accidents involving a driver and autonomous vehicle; or when there is an accident involving two autonomous vehicles. Will the rules of the road have to be changed to adapt to this evolution in transportation and, more importantly, can the rules of the road adapt fast enough to respond to such changes?

A 2016 Insurance Institute of Canada report, titled “Automated Vehicles: Implications for the Insurance Industry in Canada”, estimates that it will take 15 to 25 years to replace the existing fleet of conventional vehicles with semi-automated vehicles with collision prevention technology. Further, a forecast from the Institute of Electrical and Electronics Engineers has stated that autonomous vehicles will account for 75% of all vehicles on the road by 2040.

While there is little doubt that autonomous vehicles will eventually become commonplace, the unfortunate events of earlier this week illustrate that regardless of the cause, there is no replacement for prompt and timely investigation.  Such investigation may also require the need for specialized, technical skills to address the allegations of mechanical error and the analysis of data produced by autonomous vehicles.

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Seth Kornblum represents national and international insurance clients and self-insured companies on insurance defence litigation matters.

Do you have questions about this topic? Email Seth at skornblum@beardwinter.com or call him at 416-306-1790.

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