Some Clarity on FMVSS Application to Self-Driving Vehicles

It’s still anyone’s guess when self-driving cars will become commonplace. Elon Musk has stated that Tesla will produce an autonomous car in two years. While that prediction is perhaps overly optimistic, McKinsey & Company predicts mass adoption of self-driving vehicles by 2030. The Institute of Electrical and Electronics Engineers predicts that by 2040 up to 75% of vehicles on the road will be autonomous.

When self-driving cars are adopted, they will affect a large number of professions. Personal injury lawyers, auto-body workers, chiropractors, towing companies, and insurance salespeople will all be impacted.

In a recent letter to Google, the National Highway Traffic Safety Administration (NHTSA) responded to a November 12, 2015 request from Google for interpretation of a number of provisions of the Federal Motor Vehicle Safety Standards (FMVSSs). The letter is dense. There are two things that I want to focus on.

First, Google states that its self-driving cars will have “Level 4 Full Self-Driving Automation.” This means that the vehicle will “perform all safety-critical driving functions and monitor roadway conditions for an entire trip.” Google’s plan is for a self-driving vehicle that consistently makes better decisions than a human driver and, therefore, traditional controls (such as a steering wheel, turn signal, and brake pedal) are not only unnecessary, but hazardous.

Second, on the majority of issues raised by Google, NHTSA states that it will need to adopt new rules to apply current FMVSSs to the Google vehicle and to ensure that Google is complying with the FMVSSs. However, NHTSA states that, when interpreting a number of the provisions, Google’s Self-Driving System (SDS) can be deemed to be the driver of the vehicle.

Although this is an FMVSS compliance issue, deeming the SDS to be the driver is an important first step in establishing that liability for self-driving car collisions will rest with the manufacturers, and not the occupants. A corollary of this is that occupants might not need to purchase personal auto insurance when using self-driving vehicles. If all goes well, the world will be much safer, auto insurance will be unnecessary, and personal injury work will be a lot harder.

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