Autonomous and Electric Cars and Trucks: Did They Survive COVID?

PUBLISHED IN THE BRIEF, VOLUME 50, NUMBER 2, WINTER 2021. © 2021 BY THE AMERICAN BAR ASSOCIATION. REPRODUCED WITH PERMISSION. ALL RIGHTS RESERVED. THIS INFORMATION OR ANY PORTION THEREOF MAY NOT BE COPIED OR DISSEMINATED IN ANY FORM OR BY ANY MEANS OR STORED IN AN ELECTRONIC DATABASE OR RETRIEVAL SYSTEM WITHOUT THE EXPRESS WRITTEN CONSENT OF THE AMERICAN BAR ASSOCIATION.

Speaking of pandemics, floods, hurricanes, and elections . . . let’s not forget about the ongoing development of autonomous and electric vehicles (AVs/EVs). This article will explore the current AV/EV universe and see where it stands as we begin 2021, with the most unusual 2020 now finally in our rearview mirror. The discussion begins with cars (electric/autonomous); then we’ll switch over to trucks (electric/autonomous); and then we’ll address the legislation that is developing around the new technology, how the technology can be used for driver training and coaching, and finally, some ongoing and future liability concerns.

WHERE ARE WE? WHERE ARE WE HEADED?

Level 5 full autonomy. That is where we are trying to go. That is the goal of most everyone in the business. We will talk more about that below. But if you have ever read an article or heard a presentation on this topic before, you know where it starts—safety. If you’re afraid of robot cars, you should be terrified of human drivers, because we are not very good at it. In the U.S. alone, we have about 6 million crashes, 2.5 million injuries, and 37,000 deaths per year.¹ That is about 100 deaths per day coming from the automotive space, with an estimated 94 percent caused by human error. So, the goal is to get the humans “out from behind the wheel of the car.”

Until we get to Level 5, the industry will continue to roll out new safety features, such as automatic emergency braking, front-collision warnings, lane-keeping assist, adaptive cruise control, and blind-spot detection, commonly referred to as advanced driver-assistance system (ADAS) technology. You will hear a lot of other new terms in the next few years, such as CASE mobility (connected, autonomous, shared, and electric). That is the direction we are headed with cars; that is the direction we are headed with trucks. And, one of my favorite words, that is as much fun to say as it is to contemplate, “autonomopocalypse.”

This life-changing description of the future of mobility encompasses not only the AVs/EVs that are headed our way, but also the change in human behavior that will occur along with their arrival. Autonomy is freedom, the age of the passenger is now, and the age of the driver is over—as reflected in the current statistics showing young people not getting (or in no hurry to get) their driver’s licenses.² Sixteen-year olds are not camping out on the steps of the public safety department waiting to get their licenses like they used to because they don’t want to be the ones stuck driving the car; they want to be the ones who are free to use their cell phones or text or monitor social media (or whatever they do these days).

If you remain skeptical, like they say, “follow the money.” The recent mergers and partnerships in this industry have been simply astounding. The collaboration between companies that were heretofore bitter rivals are now commonplace. Recently, Amazon bought Zoox, a California-based “ride-hailing” business, reportedly for $1.2 billion.³ Amazon has also invested in Rivian (electric pickup trucks and SUVs) and Aurora, another self-driving technology company.⁴ In September 2020, GM announced it was buying a stake in Nikola, the hydrogen-electric truck maker, which is also planning to sell the Badger electric pickup⁵ (however, as of this writing, that deal appears to have fallen through or been reduced in scope due to public concerns about Nikola’s technology and marketing endeavors). Chevy is trying to catch up in the EV race, with plans to have 20 EVs by 2023 and to reintroduce an electric Hummer. Ford plans to introduce an all-electric F-150. Lyft, Uber, Nikola, Lordstown, Li Auto, Nio, Xpeng, and Fisker recently went public, with others waiting in the wings, so there is an incredible amount of money changing hands in the AV/EV industry. Case in point: Tesla’s market capitalization is currently worth more than the nine largest car companies combined, even though it only accounts for about 1 percent of global vehicle sales.⁶

ELECTRIC CARS

Electrification and autonomy are two different technologies. Some companies are focusing on electric cars and some are focusing on autonomous cars, and some are focusing on both. But both technologies are headed along the same trajectory and will make a huge impact on mobility in the next three to five years, and beyond. China is the world leader in EVs, but Europe hit a milestone last year, selling 500,000 electric vehicles in the first half of 2020—surpassing China.⁷ There are two primary forces moving these numbers overseas: financial incentives (tax credits), and the deadlines set by many European countries over the next 10–20 years for when they plan to go electric (zero-emission) and do away with all fossil fuels.

As for the U.S., newly elected President Joe Biden has made boosting EVs a top priority and has pledged to support the massive build-out of EV charging stations. It is also likely that he will support new tax credits and other incentives for consumers to encourage growth and development in the EV sector. In California, Governor Gavin Newsom signed an executive order on September 23, 2020, declaring that all new passenger cars sold in California will be zero-emission by 2035. This follows the California Air Resources Board’s (CARB’s) previous announcement in June 2020 that all new medium and heavy trucks sold in California will be zero-emission by 2045.⁸

Some of these EV car companies are now household names, like Tesla. It is no longer weird to have a friend or neighbor who drives a Tesla. Elon Musk did us all a favor when he noted that all the previous electric cars were ugly, so he wanted to have a sexy electric car—hence, the Tesla Models S, 3, X, and Y. The Tesla Model 3 has been the leading car in the luxury space for the last three years.

Other EV startups you may not be as familiar with include Lucid, Byton, Faraday Future, Nio, Xpeng, Li Auto, Fisker, and Polestar. Plus, all the legacy manufacturers are trying desperately to join the race and make their mark. Lucid, which is led by a former Tesla executive, has garnered a lot of attention in the news lately for its first product, the Lucid Air. This is going to be an expensive car, reportedly $80,000–$140,000. It will be among the fastest cars in the world, going from 0 to 60 in 2.5 seconds, with a top speed of 200 miles per hour, and a range of 517 miles, in a market where most electric cars average below 300 miles on a full charge.⁹

In the electric pickup space, look out for Rivian, Bollinger, Tesla, and Lordstown. The Lordstown Endurance is expected to be one of the first electric pickup trucks on the market in 2021 and has more than 100,000 preorders. Lordstown made a major announcement in December 2020 of its plans to partner with Camping World, one of the nation’s leading RV dealerships, to create a national EV service and collision network across Camping World’s footprint of over 170 locations across the country.¹⁰ Meanwhile, the Nikola Badger pickup is supposedly on hold as a result of the recent changes in the GM/Nikola negotiations.

AUTONOMOUS CARS

Let’s jump from electric to autonomous cars. A lot of new players are fighting for the lead in this space, while the legacy manufacturers are once again trying to catch up.

Back to the levels mentioned earlier—and the goal of reaching Level 5 full autonomy. There are six levels, with Levels 0, 1, and 2 comprising most of the cars on the market today, which require significant amounts of human interaction. As we move up to Levels 3, 4, and 5, we will have less human involvement and increasingly more technology taking over the wheel. At Level 5 full self-driving, the human does not have any ability to take over the car. It is completely self-driving—think no steering wheel or brake pedal kind of self-driving. Levels 3 and 4 still contemplate some degree of human intervention, albeit minimal, when needed.

Some of the leading AV car companies are Waymo, Cruise, Zoox, Aurora, Uber, Aptiv, and Argo AI, and supposedly Apple is developing an AV behind the scenes. Waymo, the former Google car project, has been operating a ride-hailing service in Phoenix since early 2017. Waymo is the leader of the pack in the car space when it comes to testing its Waymo Driver platform. Waymo One was the first publicly available, paid ride-hailing service operating on a pilot/limited basis. Waymo claims over 20 million miles of testing via actual driving on public roads (and more than 15 billion miles in simulated testing) since the beginning of its testing program. ¹¹ Waymo traces its roots back to the Google Chauffeur program, which started in 2009. That amounts to 11 years Google has been developing and testing this technology while piling up actual road miles across the country under a variety of circumstances, so the technology has already undergone lengthy scrutiny. So, what does it intend to do with all this testing and technology it has amassed? Waymo recently explained that there are four ways it has in mind to make a profit. One is ride-hailing, paid rides like a robotaxi service, which it’s doing right now in Phoenix. Next is urban delivery. It will use the same ride-hailing cars to make local deliveries in the Phoenix area. And then there is long-haul AV trucking, which it thinks is its biggest market opportunity. Finally, it intends to sell the technology to various automakers.¹²

Aurora is another startup self-driving company that requires special mention because one of its founders, Chris Urmson, was a pioneer of the AV space and one of the original and most respected voices that called to us from the AV desert long ago. In December 2020, Aurora acquired Uber’s self-driving unit, Advanced Technologies Group, giving it an even stronger platform as a leader in both the light passenger and heavy-duty truck space.¹³

Apple’s long-rumored effort to develop AV technology is allegedly on track to produce a self-driving passenger vehicle in 2024. Apple is believed to have been quietly working on AVs since 2014 under the name “Project Titan,” with plans to focus on a mass-market personal vehicle for consumers, as opposed to developing robotaxis for driverless ride-hailing services.¹⁴

Meanwhile, Ford and Volkswagen are partnering with Argo AI. GM is partnering with Cruise. Aptiv is partnering with Lyft. The robotaxi market is actually happening right now. In addition to Waymo in Phoenix, Uber has been offering rides in the Pittsburgh area, and Aptiv and Lyft have been offering rides in Las Vegas for almost two years.

On a related note, autonomous local delivery services are a new and interesting concept—especially during a pandemic. Nuro is delivering for Kroger and Domino’s. The little Nuro “car” looks like a big lunchbox with wheels. The doors open, allowing you to reach in and get your own pizza or grocery bag. Nuro was recently granted the first-ever exemption by the National Highway Traffic Safety Administration (NHTSA), allowing unmanned vehicles to travel on public roads, with the proviso that they operate at slower speeds and carry goods only (no humans).¹⁵

As for connectivity, you will be hearing more about vehicle-to-vehicle (V2V), vehicle-to-internet (V2I), and vehicle-to-everything (V2X) technology. V2X is where we are headed, and with 5G coming along, you will begin to see everything connected—from cars, trucks, planes, and boats, to toll booths, traffic signals, and street signs. It will lead to a totally connected mobility ecosystem. 5G will be a big game-changer, especially when it comes to cellular vehicle-to-everything (C-V2X), which will allow all cars to communicate with each other. Obviously, there is a lot of skepticism about when and where 5G will be rolled out, and whether it will be operational on a national basis or if it will ever make its way to our smaller, rural states and communities. It will certainly have a major effect on the automotive world.

ELECTRIC TRUCKS

In August 2020, a new study predicted that there would be 54,000 electric trucks on the road by 2025.¹⁶ The two main technologies in play are the traditional battery pack (Tesla) and hydrogen fuel cells (Nikola). Interestingly, back in July 2020, and within 24 hours of each other, Tesla and Nikola announced that they were both building new factories to make their battery-powered heavy trucks.¹⁷ Curious timing? Perhaps it had something to do with CARB’s announcement in June of its Advanced Clean Trucks rule, which is the first in the nation to roll out limitations on how many diesel-powered vehicles can be sold in California starting in 2024.¹⁸ These limitations increase until 2045, when all new class 2 through 8 vehicles must be zero-emission. Over the next 25 years, California is going to be mandating or limiting how many diesel vehicles can be sold in the state until finally eliminating them. Fifteen other states have signed some sort of pact or agreement to follow suit and try to eliminate gasoline and diesel engines (fossil fuels) by 2050.¹⁹

Tesla’s new Gigafactory in Austin, Texas, will manufacture the Semi (heavy truck) and the Cybertruck (pickup). Elon Musk said the campus where they are going to build these battery electric vehicles (BEVs) will be a stunning 2,000-acre ecological paradise employing 5,000 people. Other than some introductory fireworks last year, Tesla has otherwise kept a low profile and operated under the radar on the development and status of the Semi.

Nikola, on the other hand, uses hydrogen fuel cell electric truck (FCET) technology, and has been subject to much higher public scrutiny as of late. In addition to breaking ground on its new one-million-square-foot factory in Arizona in July, where it will produce two of its truck tractor models, Nikola went public in June 2020. Shortly thereafter, GM announced in September it was buying an 11 percent stake in Nikola worth about $2 billion and will be the exclusive supplier of the hydrogen fuel cells for Nikola’s class A trucks.²⁰ Nikola expects to be the first zero-emission truck maker to have a range in excess of 300 miles, as well as a too-good-to-be-true $1-per-mile lease plan. At full production, Nikola expects to produce about 35,000 trucks per year, and it claims to have about 9,000 nonbinding orders. On the downside, Nikola was hit hard in September with allegations of fraud, its founder and CEO Trevor Milton stepped down amidst the scandal, its stock took a hit, and it remains to be seen the extent to which GM will follow through with the proposed deal to partner with Nikola. Stay tuned to see what happens at Nikola.

Xos Trucks (originally named Thor Trucks) is a traditional BEV truck manufacturer based in Hollywood, California. It is developing both heavy-duty and “last-mile” medium-duty electric trucks. Xos has partnerships with UPS and Loomis, doing local deliveries in the Los Angeles area with its medium-sized trucks.²¹ In 2019, Daimler stated publicly that “the future is electric,” so it is putting BEVs on the road in every sector in which it competes.²² Daimler will release its eCascadia in early 2022. In 2019, Volvo began a far-reaching project called LIGHTS (Low Impact Green Heavy Transport Solutions) in Southern California, representing a $90 million public-private development with 15 partners for the purpose of discovering the best ways to implement class 8 electric trucks.²³ More recently, Volvo expanded from that project, announcing in November 2020 that it will begin producing the Volvo VNR Electric model at a plant in Virginia in early 2021.²⁴ Similarly, Toyota recently announced Project Z, its zero-emission truck initiative to create both FCET and BEV models to hit the road in the first half of 2021, with full production to start by 2024.²⁵

AUTONOMOUS/SELF-DRIVING TRUCKS

Truck driving is one of the most dangerous jobs in the U.S., as evidenced by the 4,415 large-truck-related fatalities in 2018.²⁶ Again, we look at driver error as the blame for about 90 percent of those crashes. At the same time, we have about a 60,000-person driver shortage in long-haul trucking. So, AV is a clear solution for both problems because the software doesn’t get tired or distracted; it has a superhuman level of awareness, with the ability to see up to a mile ahead with 360-degree vision; and it can learn. Yes, the trucks will constantly learn from every other truck on the road, which is much more than the combined knowledge of a human driver who drives his or her whole career. Looking at the numbers from an accident reconstruction standpoint, a human truck driver’s perception-reaction time is generally in the range of two seconds, whereas the AV truck reaction time is less than 100 milliseconds—and the truck can see a mile ahead. So, you begin to see how the numbers are stacking up in favor of safety.

Technology, by definition, is just using the latest developments to solve problems. Are there any problems with trucking? Well, sure there are. Safety, accidents, fuel economy, traffic congestion, asset utilization (which is only about 50 percent), maintenance costs, driver shortages, and the variety of issues associated with human drivers. We are back to the humans again. Humans need sleep, they need restroom breaks, they want air conditioning, they want salaries and benefits, they need training and coaching, they have good days and bad days, and sometimes they just don’t show up, and maybe even quit. These are just some of the problems that stand to be corrected with AV truck technology, and we are already off to a good start with the ADAS systems available today.

With this in mind, there has been a recent shift in focus among many AV industry leaders, who now realize that there may be a quicker pathway to market—and a more immediate economic benefit to be realized—in the AV trucking space than in the AV car market. The obvious reason is that the trucks are being trained to drive on rural interstate highways, which is relatively easy compared to urban, city driving. It is quite difficult to train AVs to drive in downtown San Francisco, or downtown Dallas, but it is relatively easy to train them to drive down an interstate, where you primarily follow the vehicle in front of you at a safe distance and stay in your lane. Hence, AV technology is likely quicker to market and more likely to provide an economic benefit in the trucking industry before it pays off in the AV car industry.

There are about a dozen major players here, such as Waymo Via, TuSimple, Kodiak Robotics, Embark, Aurora, Plus.ai, Pronto.ai, Ike Robotics, and a few others. Waymo spun off its AV trucking division in 2017 into a company called Waymo Via. It has the benefit of experience going back to 2009 from the Google car project, so it has the longest track record in the AV industry. Like many of the AV trucking companies, Waymo Via began its testing in California, ventured over to Arizona, and is now moving into Texas. The AV truck developers all seem to agree that the California-to-Texas, southwestern route provides nice weather and a good interstate highway system for testing. Waymo signed a global strategic partnership with Daimler Trucks in October 2020 to deploy Level 4 autonomous technology on Freightliner Cascadia trucks, using the Waymo Driver platform.²⁷

TuSimple is a well-funded Chinese/U.S. company started in 2015 that has been testing primarily in Arizona and opened a Dallas depot in 2020. Currently, it is testing a fleet of some 40 autonomous trucks in the Southwest under “supervised autonomy,” with a driver on board to take the wheel if necessary; but in 2021, TuSimple plans to deploy autonomous trucks for testing that drive themselves from pickup to delivery without anyone on board.²⁸ TuSimple recently started the world’s first Autonomous Freight Network (AFN) along with Penske, UPS, U.S. Xpress, McLane, and others, a concept which provides a complete AV truck ecosystem that allows self-driving trucks to come to market safely and efficiently, using TuSimple Connect, the autonomous operation’s mapping system.²⁹ TuSimple’s AFN has three phases, starting with a rollout in the Midwest. Phase 2 will include the Southeast, and finally the rest of the country in Phase 3. Phase 3 is a little harder to put into place because of the extreme weather conditions—AVs still don’t like snow and ice. The AFN lays the groundwork for AV trucks to be commercially available by 2024. TuSimple is already earning revenue by hauling loads commercially. In 2019, TuSimple had 12 contracted customers and was making three to five deliveries per day; it is now operating some seven autonomous routes from Phoenix to Dallas. As for service, TuSimple has an agreement with Penske to provide its preventive maintenance and over-the-road service from its 750 service locations. In 2020, Navistar bought a stake in TuSimple with plans to develop Level 4 trucks with no humans in the cab, which are expected to be commercially available by 2024.³⁰ UPS, FedEx, and Amazon have also invested in TuSimple.

Kodiak Robotics was founded in April 2018 with some former Google and Uber/Otto engineers. It has been doing on-road testing and delivery since 2019 in Texas along I 45 between Dallas and Houston. It is hauling for commercial customers and actually making money hauling loads right now, while also gaining the benefit of testing and simulation at the same time. Kodiak plans to deliver freight and operate as a freight carrier, and will own its own trucks.

Embark was an early leader in the AV truck space, with an exit-to-exit strategy for long-haul interstate driving. Embark made a well-known cross-country run in February 2018, traveling from coast to coast, 2,400 miles, in five days.³¹ Absent rest breaks, it could have done it in two days.

Plus.ai was founded in 2016 by Stanford grads and is already testing in about 17 states. Plus.ai accomplished a 2,800-mile cross-country trip hauling Land O’Lakes butter at the end of 2019,³² which created a lot of industry buzz, and it is expecting to have full Level 4 trucks in the next three to five years.

Pronto.ai is another AV trucking startup, well-known because of its founder, Anthony Levandowski, one of the original members of the Google Car Project. Its niche is the development of an “add-on” AV package. Pronto.ai claims its Copilot operating system can be added on to any existing truck for about $5,000, which includes adaptive cruise control, automatic emergency braking, and proactive lane centering.³³

Ike Robotics is another new startup AV truck company, named after Dwight Eisenhower, who was instrumental in developing the first interstate road system. Interestingly, Ike is not currently testing on public roads. It is doing all its testing on test tracks and in simulation. Ike anticipates that its technology will create as many driving jobs for shorthaul drivers as it may take away from long-haul drivers.³⁴

As for traditional truck manufacturers, Daimler offers a Detroit Assistance 5.0 package, featuring a suite of ADAS safety systems and active break assists, available now on its 2020 Freightliner Cascadias. So far, 90 percent of its customers have ordered the Detroit Assistance 5.0 package, which provides for Level 2 autonomy. Daimler acquired Torc Robotics in 2019 and has been testing in Virginia, while recently announcing the opening of a new test center in Albuquerque, with a goal to bring Level 4 trucking to the road within the decade.

The business case for AV trucks is pretty simple when you look at the salary and expense of hiring a driver, the hours-of-service restrictions and corresponding restrictions on asset utilization, and the cost of liability insurance. It is a no-brainer if you are a trucking company executive and you have the option to buy an “add-on” piece of self-driving equipment for $5,000, or the option to buy a new truck that comes fully loaded with AV technology, which will allow the truck to operate longer hours, fix the driver shortage problem, and take human error out of the equation to reduce accidents.

DRIVER TRAINING/COACHING

Another benefit of the latest truck technology and ADAS is the enhanced availability for driver coaching. You have probably heard of Lytx, Samsara, Omnitracs, and SmartDrive. Interestingly, Omnitracs just announced a merger with SmartDrive, so together they will use video telematics and dashcams to coach drivers and identify near misses and close calls for coaching purposes.

The technology can alert you to the fact that a particular intersection, at a certain time of day, is registering an unusual number of “near misses” or collisions at the same spot for multiple drivers, so there has to be something going on at this intersection at that time of day. The easy answer, armed with this information and in connection with a driver coaching program, is to simply reroute—just don’t take that intersection at that time of the day, it’s too risky. Thus, you can use the technology to look for clusters of problems and “near misses” like this to reduce your exposure and possibly avoid future accidents.

Nearly 25 percent of fatalities and 50 percent of all injuries occur at intersections, many of which involve rolling stops.³⁵ So Lytx is combining its machine vision technology with its artificial intelligence (AI) technology to trigger rolling stops. Using the machine vision as the eyes (to recognize a stop sign) and the AI as the brain (to assess the speed), the system can flag a rolling stop that can be used for coaching purposes to prevent near misses, particularly at intersections.

Bendix Wingman has the Fusion system, which is able to slow trucks down by up to 50 miles per hour and is said to eliminate 70 percent of rear-end crashes.³⁶ It is standard on some trucks now. Bendix also offers Safety Direct, a program that can identify good and bad driving behavior to see what is causing “near misses” in order to coach drivers and prevent future catastrophic events.

TRUCK DRIVING JOBS?

In addition to being one of the most dangerous jobs in the U.S., truck driving is also one of the most common. There are presently an estimated 3.5 million truck driving jobs in the U.S. So, what happens to all the truck driving jobs when AV trucks eventually reach universal acceptance and are produced at scale? There is a big debate, with the Teamsters and other pro-employee groups arguing that the “robot trucks” will eliminate most if not all truck driving jobs in the future.³⁷ On the other hand, the trucking industry and AV developers argue that there is a 50,000- to 100,000-person driver shortage now, which is projected to get worse in the next few years. In addition, they argue that the ADAS technology will (at least in the short term) act only as a “driving assistant,” so there will still be a need for human operators to take the wheel and to load/unload the trailer; AV/ADAS technology will make the job less stressful, thereby making it easier and more desirable, while broadening the job appeal to a larger and more diverse group of people; the corresponding increase in talent among the new job applicants will serve to help get better truck drivers; and the AV technology will apply primarily to long-haul operations using an exit-to-exit strategy, which will get the long-haul drivers home more often and will create an offsetting number of “last-mile” local delivery jobs to replace any loss in “long-haul” jobs.³⁸

STATE AND FEDERAL REGULATIONS

With an obvious industry goal to prevent a mishmash of conflicting local, state, and federal AV laws, state AV regulations are presently all over the map. Approximately 32 states have adopted some kind of AV legislation.³⁹ On the federal side, we are now operating under our fourth federal guidance document—not a regulation, but a guideline. The first federal AV guideline came out in October 2016 under the Obama administration, the second (known as AV 2.0) in September 2017 under the Trump administration, and AV 3.0 was released in October 2018. AV 4.0, released in January 2020, is formally known as “Ensuring American Leadership in Automated Vehicle Technologies” and sets forth 10 guiding principles, while detailing the role of 38 different federal agencies in supporting the AV sector and encouraging cross-agency coordination.⁴⁰ The U.S. House passed the SELF DRIVE Act in September 2017, but the Senate version known as the AV START Act then got stalled and is currently in limbo.⁴¹ The industry itself has promoted several voluntary guidelines, and there are a number of industry consortiums that have formed to try and promote uniformity in the legislation and predictability across state lines, such as the Self-Driving Coalition, formed in 2016 to educate and evangelize the public and politicians on the merits of self-driving vehicles.⁴²

INSURANCE AND LIABILITY

If there is no driver in the car, or if there is a driver but no steering wheel, how can there be any driver negligence? If there is an accident, then there must be a product liability claim. So, the expectation is that there will be fewer accidents caused by human drivers (resulting in fewer traditional negligence claims) and more liability shifted to the car itself (product liability claims). It follows then that there will be less traditional auto insurance purchased by the driver, and more product liability coverage purchased by the manufacturer.

Is this the end of personal auto insurance as we know it? Several car manufacturers have stated publicly that they will be responsible for accidents that occur if the vehicle is in self-driving mode. Inquiries into who or what is responsible for an accident will consist of determining who owns the operating system, whether a software failure caused the accident, and who owned the software, which may or may not be the manufacturer of the car. Do you treat the AV like a human, under traditional negligence principles, or do you treat it like a piece of equipment, under product liability law? For now, even if you are in self-driving mode, there is going to be a gray area where there are warning systems to alert the driver to take over control of the car in certain situations. Did the human driver take control of the car within a reasonable time after being warned, or did the human fail to acknowledge the warning altogether? In order to develop AV technology faster, there have also been theoretical discussions of a national worker’s compensation–type system, known as a manufacturers’ enterprise responsibility fund, that will assist with accidents involving AVs.

A NEW THEORY OF LIABILITY?

The advancements in truck technology are already leading to the creation of new theories of liability from our friends in the plaintiffs’ bar. Should the truck have been equipped with the latest technology or ADAS, which would have prevented the accident? Was the trucking company negligent for failing to properly equip its fleet?

How do you defend this? Obviously, every truck out there on the road today is not suddenly going to have the latest technology upgrade overnight, as these technologies will be tested and rolled out to fleets slowly. First, you rely on NHTSA, and show that the particular ADAS technology is not required by NHTSA, is not yet approved by NHTSA for heavy trucks, or may not be commercially available yet from the manufacturer. The particular ADAS technology may still be in the testing phase, may not be sufficiently validated, and may not be sufficiently reliable at this time. Further, the plaintiff would have to prove that the specific technology would have actually prevented or mitigated the accident.

Other questions to consider are whether the trucking company should wait for even newer technology to become available, or whether it has some kind of duty to go ahead and buy what is on the market today. When does the trucking company’s obligation to add this new technology ripen? What is the cost of the new technology? Can the carrier reasonably afford to install the new technology across the entire fleet at once? There are very few carriers, even the major carriers, who could afford to do that. Even if they did, it would be an investment in ADAS knowing that in today’s tech-rich environment it will likely be outdated soon, which leads to a circular argument and begs the question of “when do you pull the trigger?”

If this “failure to use the latest technology” theory is raised, the trucking company must show that it is using reasonable efforts to stay abreast in the field and to consider the new technology as it is introduced, perhaps choosing to install it on a limited or trial basis until it is thoroughly vetted and accepted in the scientific community, and until it is reasonably affordable. Consider the small mom-and-pop trucking company versus a major national carrier, and their relative economic wherewithal to experiment with new technology, purchase add-on equipment, or afford to purchase new high-tech tractors for their fleets. As Level 2 (and above) tractors with ADAS technology become more readily available and the pricing levels out, there will be a closer question of “should the company have ordered the Detroit Assistance 5.0 package that was available at the time, if they could afford it?” There will always be a cost-benefit analysis of whether the savings created by the reduction of accidents makes up for the cost of the additional safety features, bearing in mind that avoiding one catastrophic crash or one nuclear verdict could cover the cost of the new technology.

As fleets get older and the new smart trucks come to market, we will gradually see the older trucks rotate out of the fleet (and off the roads) as the technology steadily evolves to a point where things like automatic emergency braking are the new standard, and likely required by NHTSA. NHTSA is presently conducting tests on heavy trucks and is now in Phase 2 of field studies to determine whether, when, and what new ADAS technology it will ultimately mandate on heavy trucks.

Meanwhile, the Federal Motor Carrier Safety Administration (FMCSA), which would like to remain technology-neutral, launched its Tech-Celerate Now program in February 2020, to explore and understand the adoption of current ADAS technology as well as assess future ADAS technologies, with the goal of accelerating ADAS adoption, reducing crashes, saving lives, and realizing substantial return on investment through increased safety and other long-term benefits. Currently, the FMCSA is seeking comments on its proposed collection project, “Trucking Fleet Concept of Operations (CONOPS) for Managing Mixed Fleets.”⁴³ The project’s goal is to survey some 2,000 people in the trucking industry to gather their opinions and perceptions of automated driving system technologies, noting that the existing stakeholders in the road freight ecosystem want to know how they can implement ADAS into their daily operations.

Crash investigations will likewise hinge on a determination of traditional driver error versus a software failure. The new ADAS technology and crash prevention systems will lead to the creation of a new breed of expert engineers who will be able to use the software to recreate the accidents and determine the causes without traditional investigations. These new AV trucks will be data hogs, chock-full of useful information for accident reconstruction. As 5G continues to develop, we will likely be able to have immediate access to this information online. While we currently rely on accident scene investigations, drone photos, measurements, and ECM data for speed and braking, in the future engineers and accident reconstructionists may be able to fully recreate the accident sitting at their desks, with the information at their fingertips, without even having to go out into the field.

THE EFFECT OF COVID?

Did the national pandemic accelerate or postpone the adoption of AVs? From a hardware production standpoint, the new normal of working from home affected the industry like most others, and there were surely supply chain issues; but from a broader perspective, the new opportunities created by the coronavirus served to accelerate the overall public adoption of AVs. While hunkered down at home, the public realized the importance of the need for delivery of goods without human interaction. Even the naysayers realized that “contactless delivery” was a keen idea during a pandemic. On university campuses and other locales, we warmed up to the concept of robot food delivery. We realized the weakness of the human link in the supply chain, as AVs do not get sick and do not have to quarantine. The pandemic highlighted the many issues that AV technology can help solve. But the big winner in the post-corona AV space may be the increase in consumer acceptance and adoption.

CONCLUSION

As the public consumes a steady dose of AV news on social media, flashy product launches, and prototypes, and gets used to the fancy ADAS technology in their new passenger cars, the question continues to be “when will the AVs take over?” That’s a good question because a lot of AV companies have already set a target—and missed it. We have already blown past several projected timelines, such as the supposed mass deployment of self-driving taxis by 2019, so we will just keep plodding along slowly, and safely, until we get there. Regardless, the future of AVs remains bright. In the car space, Waymo One is operating a car-hailing service, albeit on a limited basis, in Phoenix; and Aptiv/Lyft is offering a robotaxi service in Las Vegas. On the AV truck side, Waymo Via, TuSimple, and Kodiak are all hauling paid loads along the Arizona-to-Texas route as we speak. So, the road map to our AV future steadily continues to be drawn, but with a few new twists and turns here and there, it is just taking a little longer to plot than the AV developers and evangelists once thought.

NOTES

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