Canadian Underwriter

Shifting liability related to autonomous vehicles among challenges for risk managers: RIMS speaker

September 29, 2017   by Jason Contant, Online Editor

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Shifting liability and “the period of intersection” between conventional vehicles and fully autonomous vehicles (AVs) will be among the challenges facing risk managers in the future, attendees to the RIMS Canada Conference heard earlier this week.

Consider “public road liability” related to infrastructure that is going to inevitably communicate with vehicles and vice versa and the principle of joint several liability comes into play, Mario Fiorino, director, legal and senior counsel with the Insurance Bureau of Canada, said during a session.

“Because roadside public authorities will be named repeatedly in these types of lawsuits, or the failure of infrastructure to have adapted in a manner that is foreseeable to the failures or interaction between autonomous vehicles and the infrastructure, and if there is a catastrophic injury that results, you are going to see municipalities and provinces named in that context in liability,” Fiorino suggested.

Some auto manufacturers have already indicated that they will accept 100% liability for products when vehicles are used in a fully autonomous mode, he added.

When there is a “period of intersection” between conventional and fully AVs, “the legal system is going to have to respond,” Fiorino said during the session, titled Managing Risk in a Connected Community: Technology, Innovation and Insurance. “There is going to have to be an approach that recognizes that product liability principles [that are] left on their own and are common law will not be able to sort these issues out,” he said.

Currently, the “thinking is all over the map” on the issue, Fiorino reported. Some schools of thought say that regular tort principles and regular product liability principles will “sort it out” as they are flexible and adaptable. Others say that “you need to go to a straight no-fault model… typically because there is not going to be any more element of driver error.”

With regard to product design, there will be more and more hybrid products that will be able to adjust between personal and commercial lines “based on the specific pattern, lifestyle and use of consumers.” A material change of risk issue may also come into play. If consumers start to move away from their original risk profile “regardless of their advisors, agents, brokers, at least from a legal standpoint, the question remains: who has informed them that gravitating away from that original profile constitutes a material change that could have adverse consequences?” Fiorino asked.

“Courts will be concerned about that – the reasonable expectations of the insured and the quality of the consultation that they have received because no matter how quickly the landscape changes, what has not shifted up to this point is the professional duties of advisors and agents,” Fiorino told conference delegates. “That has remained static for a very long time.”

The RIMS Canada Conference was held at the Metro Toronto Convention from Sept. 24 to Sept. 27.

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