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BarJournal INSuRANCE LAW

JULY/AUGUST 2015
fEaTUrE Ensuring & Insuring the

Promise of autonomous vehicles

BY EMMANuEL SANDERS

he autonomous vehicle sensation Consumers Toward Driverless Vehicles: A But the aforementioned shift may also
that has been sweeping the nation Fed. Rebate Program As A Catalyst for Early bring with it an expansion in the kinds of
has made its way to the shores of Technology Adoption, 23 Mich. Telecomm. & claims brought against manufacturers and
Ohio. This past January, Governor Tech. L. Rev. 327, 328 (2017). programmers, and ipso facto, the types of
T John Kasich initiated DriveOhio, With all the potential benefits of claims manufacturers and programmers
an initiative of the Ohio Department of autonomous vehicles, it would be prudent will seek to insure. Because autonomous
Transportation aiming to organize and to consider some of the obstacles that may vehicles will be pre-programmed with crash-
accelerate autonomous vehicle projects in Ohio. impede the adoption of this life saving optimization algorithms geared towards
In May, Governor Kasich followed this up technology. One such obstacle may be minimizing overall damage in the case of an
with Executive Order 2018-04K, authorizing the availability of insurance coverage for inevitable accident, when an autonomous
autonomous vehicle testing in Ohio and laying claims resulting from crash optimization vehicle engages in this cost-benefit analysis
out safety requirements capable of complying algorithms, an area of liability heretofore and then minimizes damage accordingly,
with Ohio traffic regulations. When signing overlooked in examinations of the insurance the resulting crash can be characterized as,
the Order, Governor Kasich emphasized that consequences of autonomous vehicles. in some sense, “intentional.” For example,
developing and adopting driverless technology To be sure, much has been written about if an autonomous vehicle is directed by its
will eliminate the human components of car how the shift to autonomous vehicles will crash-optimization algorithm to minimize
accidents and save lives: alter the nature of and parties involved in the damage of a crash by veering into a lone
“Computers do not comb their hair. litigation arising out of car accidents. For motorcyclist rather than a bus full of children
Computers do not text. Computers do accidents arising from putative design or (a reasonable approach to crash optimization)
not talk on cellphones … this technology, manufacturing defects of an autonomous that algorithm-driven outcome may be
which is going to be the 21st century vehicle or its software, plaintiffs will try to seen as itself a choice favoring the outcome
technology, is going to save lives.” sue, not only the driver of the offending preferred by the algorithm.
Ohio governor opens state public roads vehicle, but also the manufacturers of the Under Ohio law “[a] person is subject to
for smart vehicle testing, Automotive News autonomous vehicle and the programmers liability for battery when he acts intending
(May 9, 2018), https://www.autonews.com/ of its software. As articulated by Professor to cause a harmful or offensive contact, and
article/20180509/MOBILITY/180509775/ Mark Geistfeld, “scholars have reached the when a harmful contact results.” Love v. City
ohio-governor-opens-state-public-roads- shared conclusion that elimination of a of Port Clinton, 37 Ohio St.3d 98, 99, 524
for-smart-vehicle-testing. human driver will shift responsibility onto N.E.2d 166 (1988). Thus, combining the
Governor Kasich’s sentiment is borne manufacturers as a matter of products intentionality of a crash optimization choices
out by studies suggesting that adoption liability law, with most tort litigation by autonomous vehicles, with the definition
of driverless technology will lead to involving claims for design or warning of battery under Ohio law, it would seem that
dramatic decreases in automobile accidents. defects.” Geistfeld, A Roadmap for each instance of crash-optimized accident
See generally James M. Anderson et al., Autonomous Vehicles: State Tort Liab., Auto. where an autonomous vehicle chooses to
Rand Corporation, Autonomous Vehicle Ins., & Fed. Safety Regulation, 105 Cal. L. save one individual or group of individuals
Technology: A Guide for Policymakers (2016), Rev. 1611, 1619 (2017) (internal quotation at the expense of another individual or group,
http://www.rand.org/pubs/research_reports/ marks omitted).This, as predicted by a 2015 is an intentional tort in Ohio. But, Ohio
RR443-2.html. Further, driverless vehicles white paper KPMG, Automotive Insurance public policy generally prohibits obtaining
will “increase mobility for those currently in the Era of Autonomous Vehicles, will insurance to cover damages caused by
unable to drive, decrease energy use and cause a corresponding shift in insurance intentional torts. Gearing v. Nationwide Ins.
pollution, and allow commuters to create coverage for car accidents, from automobile Co., 76 Ohio St.3d 34, 38, 665 N.E.2d 1115
value in their travel time by engaging in insurance for individual drivers, to more (1996). Should public policy bar insurance
work or leisure activities instead of operating robust liability insurance for manufacturers for crashes resulting from the intentional
their vehicles.” Marie Williams, Steering and programmers. crash optimization of autonomous vehicles?
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