Self-driving or autonomous vehicles is a hot topic in insurance industry media and mainstream media as well. I attended a great program on this at the Federation of Defense and Corporate Counsel (FDCC) annual meeting last week. Auto manufacturers are working on a broad spectrum of designs, from vehicles with automatic safety features such as automatic braking and warning sensors (some of which are already on the market) to semi-autonomous vehicles that will drive themselves say on a highway, but allow or even direct the human driver to take control at certain points, to fully-autonomous vehicles that may not even allow a human driver to take control. Given the focus of my blog, this got me thinking about what kinds of class action lawsuits these new automobile designs might lead to. Here are some thoughts:

  1. Automobile manufacturers’ programming decisions: Automobile manufacturers likely will need to make programming decisions on these vehicles to tell them which risk to take where a collision is inevitable, and even under what circumstances the vehicle will choose a path that is likely to injure or even kill its occupants. These decisions strike me as perhaps leading to class actions against the manufacturers, in which insurers may participate both as subrogees and as liability insurers for manufacturers. Manufacturers will need to consider whether to allow the vehicle owner to re-program their vehicle to make different decisions, which might provide a better defense to some class actions but spawn others.
  2. Underwriting: Given what is expected to be a fairly wide variety of different technologies offered by auto manufacturers, getting the pricing correct could become challenging. And if customers are not offered the right premium for their vehicle consistent with regulatory filings, that could potentially lead to class action exposure.
  3. Costs of Repair and Method of Repair: These new vehicles will have new and no doubt costly components, and there will be issues about costs and method of repair. Aftermarket parts class action litigation has largely died down, but was active for years. What will become of “aftermarket” computers that control a semi-autonomous vehicle’s safety system?
  4. Regulatory and Statutory Compliance: This is always a challenge for insurers to keep up with, and a hot area for class actions. It will not get any easier when “old” requirements that were based on “older” vehicles become applicable to semi-autonomous or autonomous vehicles. The FDCC panelists mentioned how California Proposition 103’s requirements for automobile insurance rating may be particularly difficult to apply to the new vehicles.