Butler Snow attorneys Arthur D. Spratlin, Jr. and Nicole A. Broussard recently authored the following article in The Mississippi Lawyer (Winter 2024).
For those of you who attended the Mississippi Bar Annual Meeting and Summer School in July in Biloxi, you may recall the presentation that Commissioner Sean Tindell (Mississippi Department of Public Safety) and I did on Autonomous Vehicles (AVs). The presentation started with a video clip from the classic 80’s TV show “Knight Rider.” As Michael Knight dozed off, the car (KITT) took over the driving. When police officers noticed the sleeping driver, they gave chase – leading to a comical effort to pull over the self-driving car. That scene from 1982 summarized our presentation to the Bar in 2023.
Where Are We? Where Are We Headed?
The Society of Automotive Engineers (SAE) has established six levels of automation – beginning with Level 0 (“No Automation”) and ending with Level 5 “full automation” – which is where we are trying to go. That is the goal of most everyone in the business. 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. In the U.S. alone, we have in recent years experienced about 6 million crashes, 2.5 million injuries, and approximately 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.” Ironically, while Americans drove some 13 percent fewer miles during 2020 due to lockdowns and working from home, the pandemic created some bad driving behavior, including excessive speeding and drug and alcohol use. 2020 ended with an 8 percent increase in fatalities over 2019, with about 42,060 deaths on our roadways. And, most unfortunately, Mississippi ranked first in the deadliest road category, with 25 deaths per 100,000 people based on the number of road traffic deaths in each state in 2020. [2] The latest estimates for 2022 show 42,795 traffic deaths.[3]
Until we get to Level 5, the industry will continue to roll out new “driver assist” 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 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 and trucks as we enter the “autonomapocalypse.”
This life-changing description of the future of mobility encompasses not only the AVs and electric vehicles (EVs) that are forthcoming, 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.[4] Sixteen-year-olds are not as eager to get their licenses as they used to be because they don’t want to be the ones burdened with the task of driving; they want to be free to use their cell phones or text or monitor social media.
If you remain skeptical, “follow the money.” The recent mergers and partnerships in this industry have been simply astounding. Collaboration between companies that were bitter rivals is now commonplace. Recently, Amazon bought Zoox, a California-based “ride-hailing” business, for a reported $1.2 billion.[5] Amazon has also invested in Rivian (electric pickup trucks and SUVs) and Aurora, another self-driving technology company.[6] GM is trying to catch up with Tesla and others in the AV/EV race, recently introducing “Super Cruise” on some of its models and investing in self-driving startup Cruise, and reintroducing an all-electric Hummer in 2022. Ford introduced an all-electric F-150 “Lightning” in 2022, which will include “bi-directional” charging, so that your home can charge your pickup, or your pickup can charge your home. The long-awaited Rivian electric pickup began deliveries to customers in 2022. Key players in the AV/EV space, such as Rivian, Aurora, TuSimple, Embark, Lyft, Uber, Nikola, Lordstown, Lucid, Li Auto, Nio, Xpeng, and Fisker went public over the past several years, so there is an incredible amount of money changing hands in the AV/EV industry. Case in point: Tesla’s market capitalization was recently worth more than the nine largest car companies combined, even though it only accounts for about 1 percent of global vehicle sales.[7]
Autonomous/Self-Driving Trucks
Are there any problems with trucking? Sure. Safety, accidents, fuel economy, traffic congestion, asset utilization (approximately 50 percent), maintenance costs, driver shortages, and a variety of issues associated with human drivers, just to name a few. Humans need sleep and restroom breaks, want air conditioning and salaries with benefits, need training and coaching, get sick, and sometimes they just don’t show up, or quit. These are just some of the problems that stand to be corrected with AV truck technology.
Truck driving is one of the most dangerous jobs in the U.S., as evidenced by the estimated 5,171 large-truck-related fatalities in 2022.[8] Human error is generally to blame for about 90 percent of those crashes. At the same time, there is according to some estimates a 60,000-person driver shortage in long-haul trucking. AV is a clear solution for both problems because the software does not get tired or become 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. Looking at the numbers from an accident reconstruction standpoint, a human truck driver’s perception-reaction time is generally two seconds, whereas the AV truck reaction time is less than 100 milliseconds—and the truck can see a mile ahead.
There has been a recent shift in focus among many AV industry leaders, who now realize there may be a quicker pathway to market—and a more immediate economic benefit—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 driving. 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 have been several major players here, including Kodiak Robotics, Aurora, Waymo Via, Gatik, Torc, TuSimple, Embark, and Plus, among others. However, it has been a tough market with a heavy cash burn. One of the pioneers in the AV truck space was Starsky Robotics, which is no more, and TuSimple recently announced it is winding down its U.S. operations and Embark was acquired and taken private. Kodiak, Aurora and Waymo Via are all currently hauling loads in Texas. In fact, the “Texas Triangle” is the new hot spot for AV truck testing, which includes the five largest cities in Texas. There are numerous partnerships and alliances forming between the new AV truck startups and established trucking companies, such as Kodiak hauling loads for U.S. Xpress, CEVA, and 10 Roads Express, Aurora hauling loads for FedEx, Werner, Hirschbach and Covenant, and Waymo Via hauling loads for J.B. Hunt, among others. As for maintenance and service, Waymo and others are partnering with Ryder to use its national network of fleet maintenance facilities for terminals.
As for traditional truck manufacturers, Daimler offers a Detroit Assistance 5.0 package, featuring a suite of ADAS safety systems and active brake assists, available since 2021 on Freightliner Cascadias. So far, about 90% of its customers have ordered the 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 headquarters and testing center in Albuquerque, with a goal to bring Level 4 trucking to the road within the decade.
The business case for AV trucks is simple when considering 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 for trucking company executives who 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, allowing the truck to operate longer hours, alleviate the driver shortage, and take human error out of the equation.
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 reach universal acceptance and are produced at scale? There is a big debate, with pro-employee/driver groups arguing that the “robot trucks” will eliminate most if not all truck driving jobs in the future.[9] On the other hand, the trucking industry and AV developers argue that the 60,000-person driver shortage is projected to get worse in the next few years. The pro-AV group argues that the ADAS technology will (at least in the short term) act only as a “driving assistant” and human operators are still needed; AV/ADAS technology will make the job less stressful, thereby making it easier and more desirable; the corresponding increase in talent among new job applicants will 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 create an offsetting number of “last-mile” local delivery jobs to replace any loss in “long-haul” jobs.[10] They see the introduction of autonomous trucks as a specific, tailored application that will augment, rather than replace, their existing fleets and professional drivers. In other words, it is not an “all or nothing” thing at this stage.
Insurance and Liability
If there is no driver in the truck, 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 (software failure) claim. 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 vehicle itself. 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 vehicle manufacturers have stated publicly that they will be responsible for accidents that occur if their 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 vehicle. 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 a gray area where warning systems alert the driver to take control of the vehicle in certain situations. Did the human driver take control of the truck within a reasonable time after being warned, or did the human fail to acknowledge the warning altogether? To develop AV technology faster, there have 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.
Insurance Coverage/Motor Carrier Agreements
Will the current, typical model of trucking insurance coverage change as AV’s begin to haul paid loads? Most of the paid loads are still part of a testing phase, with a driver still sitting behind the wheel ready to take over if necessary. So, technically, the truck is still considered to be operated by a human driver for the purpose of insurance coverage. Similarly, the language in a typical motor carrier agreement may basically remain the same while a human driver is in the seat (albeit “hands off”), but will eventually have to be revisited. Shippers and carriers will also have to consider revising their trailer interchange agreements since trailers will be dropped off at “bull-pens” along the interstate for the “middle mile” AV leg of the journey, and then dropped off at another “bull-pen” for local delivery along the “final mile” by a human driver. In this scenario, the trailer would be pulled by at least three (3) different tractors along the way.
As for the “new” type of coverage required for AV trucks, in addition to looking more like product liability coverage for potential software failures, there are also concerns about coverage for cyber security (what if the truck gets hacked and overtaken by criminals?), human trafficking (what if the truck gets involved in human smuggling operations?). What about damage to the various trailers that will be pulled by the AV tractors? Who will be able to determine how and when the damage occurred? On the other hand, if the promise of safety is truly realized by AV technology, then there should be a monumental reduction in trucking accidents and, in theory, the cost of liability insurance should go down.
A New Theory of Liability?
The advancements in truck technology are already leading to the creation of new theories of liability from 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 on the road today is not going to have the latest technology upgrade overnight. First, you rely on the National Highway Traffic Safety Administration (NHTSA) to 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 from the manufacturer. The 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 prevented or mitigated the accident.
Other questions to consider: 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 major carriers, who could afford to do that. Even if they did, it would be an investment in ADAS knowing that it will likely be outdated soon, leading 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 it is using reasonable efforts to stay abreast and considering 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 higher) tractors with ADAS technology become more readily available and the pricing levels out, there will be a closer question of “if affordable, should the company have ordered the Detroit Assistance 5.0 package that was available at the time?” 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 age and new smart trucks come to market, we will gradually see older trucks rotate out of the fleet as the technology 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 has done field studies to determine whether, when, and what new ADAS technology it will mandate on heavy trucks. Meanwhile, the Federal Motor Carrier Safety Administration (FMCSA), launched its Tech-Celerate Now program in February 2020 to explore and understand the adoption of current ADAS technology and assess future ADAS technologies, all with the goal of accelerating adoption, reducing crashes, saving lives, and realizing substantial return on investment through increased safety and other long-term benefits. On the flipside, all this technology may lead to the odd result of lawsuits that claim the truck had too much technology which caused an accident!
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 use the software to recreate accidents and determine the cause without traditional field investigations. These new AV trucks will be data hogs, chock-full of useful information for accident reconstruction. 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 will likely be able to fully recreate the accident without ever leaving their desks.
The Effect of COVID?
Did the pandemic accelerate or postpone the adoption of AVs? From a production standpoint, the new normal of working from home affected the industry, and there were 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 having delivery drivers who do not get sick. Even the naysayers realized “contactless delivery” was a keen idea during a pandemic. The pandemic highlighted the many issues that AV technology can help solve. But the big winner in the post-Covid AV space may be the increase in consumer acceptance and adoption.
Federal Regulation
At the federal level, there have been four Autonomous Vehicle Policy documents issued by the USDOT and NHTSA, beginning in September 2016 by the Obama Administration. The current version, known as “AV 4.0” was issued in January 2020. These policy documents are intended to serve as guidelines for the states to develop consistent rules on AVs. They serve as “best practices” to guide manufacturers on design, testing, and deployment of AVs, and are technology neutral. AV 4.0 emphasizes the federal government’s role in fostering AV development and sets forth 10 guiding principles. It also details the role of 38 federal agencies in supporting the AV sector. The U.S. House and Senate introduced the “SELF DRIVE Act” and the “AV START Act,” respectively, in 2017, but the legislation remains pending.
The MS FAVE Act
Some 38 states have adopted some form of AV legislation, or issued Executive Orders, while some states such as Arizona and Texas have gone a step further and been aggressive in recruiting the AV companies to serve as testing grounds. Prior to 2023 legislative session, there was a big hole in the AV map when it came to Mississippi, as our surrounding states had some type of AV legislation in place. With policy assistance and guidance from the Autonomous Vehicle Industry Association (AVIA), along with Kodiak and Aurora bringing autonomous tractors to the Capitol for inspection, Governor Reeves signed the Mississippi Fully Autonomous Vehicle Enabling Act of 2023 (MS FAVE Act), effective July 1, 2023. §63-35-1 et seq.
Among other things, the FAVE Act allows a person to operate a “Fully Autonomous Vehicle” on the public roads of Mississippi without a human driver provided that the “Automated Driving System” is engaged. The Act defines a “Fully Autonomous Vehicle” as one equipped with an automated driving system designed to function without a human driver as a level 4 or level 5 automation system and defines an “Automated Driving System” as hardware and software that are collectively capable of performing the entire dynamic driving task on a sustained basis. When engaged, the automated driving system is considered the driver or operator of the vehicle.
Prior to operating a fully autonomous vehicle on public roads without a human driver, a “Law Enforcement Interaction Plan” (LEIP) must be submitted to the Department of Public Safety. The LEIP must reflect the procedures that are developed by manufacturers, owners or operators of fully autonomous vehicles to be used by law enforcement officers and first responders when interacting with fully autonomous vehicles. The Department of Public Safety (in conjunction with the Department of Revenue – registration and titling) is charged with implementing and enforcing the provisions of the Act.
Conclusion
As the public consumes a steady dose of AV news on social media, flashy product launches, AV trucking partnerships, and public stock offerings, and gets used to the ADAS technology in their new passenger cars, the question continues to be “when will the AVs take over?” Many AV companies have already set a target—and missed it. We have already sped past several projected timelines, such as the supposed mass deployment of self-driving taxis by 2019, so the sprint to develop self-driving vehicles has become more of a marathon. Regardless, the future of AVs remains bright and the roadmap to our AV future continues to be drawn, but with some caution lights, yield signs, and detours along the route.
Arthur D. Spratlin, Jr. is a member of Butler Snow LLP, in Ridgeland, Mississippi. He is the Practice Group Leader of the Tort, Transportation and Specialized Litigation Group and Coordinator of the firm’s 24-Hour Accident Investigation Team and the Autonomous Vehicle Technology Group. He has extensive experience in Product Liability Law, Transpiration Law/Trucking Defense, and Automotive/Recreational Vehicle Law. Mr. Spratlin has authored numerous articles and papers on evidentiary issues in the trucking industry and is a frequent speaker and presenter at transportation conferences on trucking liability and autonomous vehicles.
Nicole A. Broussard is a member of the Tort, Transportation and Specialized Litigation group at Butler Snow LLP.
Sean Tindell is the Director of the Mississippi Department of Public Safety, a position he has held since 2020. Prior to that, he served on the Mississippi Court of Appeals and served in the Mississippi Senate.
[1] Facts + Statistics: Highway Safety, Ins. Info. Inst., https://www. iii.org/fact-statistic/facts-statistics-highway-safety (last visited Jan. 19, 2021).
[2] Joshua Williams, Study says state has deadliest roads in US, Clarion Ledger, April 26, 2023, citing NHTSA and FINN of Americas
[3] Traffic Safety Facts, USDOT, NHTSA, Early Estimate of Motor Vehicle Traffic Fatalities in 2022, April 2023
[4] Nathan Bomey, Millennials Spurn Driver’s Licenses, Study Finds, USA Today (Jan. 19, 2016), https://www.usatoday.com/story/ money/cars/2016/01/19/drivers-licenses-uber-lyft/78994526.
[5] Darrell Etherington, Amazon to Acquire Autonomous Driving Startup Zoox, TechCrunch (June 26, 2020), https://techcrunch.com/2020/06/26/ amazon-to-acquire-autonomous-driving-startup-zoox.
[6] Neal E. Boudette, Amazon Invests in Rivian, a Tesla Rival in Electric Vehicles, N.Y. Times (Feb. 15, 2019), https://www.nytimes. com/2019/02/15/business/rivian-amazon.html.
[7] Michael Wayland & Lora Kolodny, Tesla’s Market Cap Tops the 9 Largest Automakers Combined—Experts Disagree about If That Can Last, CNBC (Dec. 14, 2020), https://www.cnbc.com/2020/12/14/tesla-valuation-more-than-nine-largest-carmakers-combined-why.html.
[8] Motor Carrier Safety Progress Report (as of March 31, 2023), Fed. Motor Carrier Safety Admin., USDOT
[9] Aarian Marshall, The Human-Robocar War for Jobs Is Finally On, Wired (Sept. 29, 2017), https://www.wired.com/story/ trucks-robocar-senate-war.
[10] Michael Jaeger et al., Challenges for the Autonomous Trucking Industry: Part 1, Law360 (Dec. 3, 2020), https://www.law360.com/articles/1334034/ challenges-for-the-autonomous-trucking-industry-part-1.
