Automobile laws should be as smart as autonomous cars

Many people do not realize that Michigan has passed some of the nation's most significant laws regarding autono­mous vehicles. Specifically, Michigan has enacted a total of six laws regarding autono­mous vehicles. Two of these laws were enacted together in 2013 as 2013 PA 231 and 2013 PA 251. The other four laws were enacted together in 2016 as 2016 PA 332, 2016 PA 333, 2016 PA 334, and 2016 PA 335. The 2013 laws authorized the use of autonomous vehicles on public roads, but only for the limited purposes of testing and research. These laws also updated the Michigan Motor Vehicle Code to include certain definitions pertinent to automated vehicle technologies. Additionally, these laws codified existing products liability law to provide manufacturers of autonomous driving technologies with some forms of immunity for civil liability for damages resulting from autonomous vehicles. In 2016, the Legislature made it completely legal to operate an autonomous vehicle on Michigan roads without restrictions. See MCL 257.606b(2) and MCL 257.665(4). The 2016 laws also provided more updates to the Michigan Motor Vehicle Code pertinent to automated vehicle technologies. These laws also provided manufacturers of autonomous technologies, as well as mechanics, further immunities and protections against civil liability for damages resulting from autonomous vehicles. Michigan's autonomous vehicle laws were not developed to provide people with clear and established rights in relation to crashes involving autonomous vehicles. Nor were these laws developed to address how auto insurance should apply to autonomous vehicles. Moreover, these laws, as currently written, provide a contradictory answer to this fundamentally important legal question is the legal operator of an autonomous vehicle the technology that is operating the vehicle, or the human who put the autonomous vehicle into operation? The 2013 laws amended the definition of "operate", "operating" and "operator" within MCL 257.35a of the Michigan Motor Vehicle Code. These amendments made it clear that, even if the automated technology is technically operating the vehicle, the human who put the technology into operation would qualify as the legal operator of the vehicle. Specifically, the Legislature amended the definition of "operate" and "operating" in MCL 257.35a to include the following: "[c]ausing an automated motor vehicle to move under its own power in automatic mode upon a highway or street regardless of whether the person is physically present in that automated motor vehicle at that time. This subdivision applies regardless of whether the person is licensed under this act as an operator or chauffeur. As used in this subdivision, "causing an automated motor vehicle to move under its own power in automatic mode" includes engaging the automated technology of that automated motor vehicle for that purpose." Further, the Legislature amended the definition of "operator" in MCL 257.36 to include any person who "operates an autonomous motor vehicle upon a highway or street." However, in complete contradiction with the 2013 laws, the 2016 laws added MCL 257.665(5) to the Michigan Motor Vehicle Code, which explicitly states: " . . .when engaged, an automated driving system allowing for operation without a human operator shall be considered the driver or operator of a vehicle for purposes of determining conformance to any applicable traffic or motor vehicle laws and shall be deemed to satisfy electronically all physical acts required by a driver or operator of the vehicle." Accordingly, the troubling reality is that when an autonomous vehicle crashes in Michigan and people are injured, our laws provide a contradictory answer as to whether the lawful operator of the autonomous vehicle is the human who put it into operation it or, instead, the technology within the vehicle itself. In the criminal law context, this contradiction is of critical significance, particularly given that the status of being an "operator" of a vehicle is what imposes criminal liability under the Michigan Motor Vehicle Code. Therefore, due this contradiction, it is not entirely clear whether a human who puts an autonomous vehicle into operation could face criminal penalties for a crash that occurs while the vehicle is driving itself autonomously. In the civil law context, this contradiction could also have significant implications. In any negligence action relating to a crash involving an autonomous vehicle, questions will undoubtedly arise about who should be the party to the lawsuit. For example, if a human does not qualify as the operator of the autonomous vehicle, should he or she be a party to the case? If the vehicle technology is deemed the operator, does that mean that the motor vehicle manufacturer itself could be a defendant in a negligence action? Moreover, given the language of Michigan's owner liability statute, will liability attach to the owner of the autonomous vehicle if the technology qualifies as the operator of the vehicle? In addition to the problems of determining who is the legal operator of an autonomous vehicle, there are many other issues regarding how negligence concepts will apply in relation to the conduct humans and technology that factor into a crash involving an autonomous vehicle. Also, with respect to issues relating to the payment of no-fault insurance benefits, the definition of "operator" applies to the determination of which auto insurance company is responsible to pay no-fault benefits to the people injured in a motor vehicle crash. Therefore, the contradiction of who qualifies as the operator of an autonomous vehicle will have significant implications for the determination of which auto insurance company is liable to pay no-fault benefits for people injured in crashes involving autonomous vehicles. Lawmakers need to address larger questions about the rights and duties of humans in relation to autonomous vehicles. Furthermore, as we embark upon our future with autonomous vehicles, in which concepts of fault will be increasingly difficult to analyze and determine, the last thing we should do is eliminate our no-fault system's lifetime medical care and rehabilitation benefits for auto related injuries that are payable regardless of fault. The bottom line is that we need smart legislators to lead us through these unique times when Michigan's no-fault insurance law and Michigan's autonomous vehicle laws need to be modified and improved. By addressing both issues together, Michigan legislators will develop our automobile laws in such a way that is best suited for the people of Michigan and our driving future. On the other hand, if lawmakers continue to address these issues and concerns separately, they will undoubtedly make decisions that will have an adverse effect on Michigan's legal system, its insurance industry, its medical industry, and, most importantly, its people. ----- Stephen Sinas is a partner at the Sinas Dramis Law, headquartered in Lansing. He represents clients in matters dealing with personal injury, disputes under the Michigan No-Fault Auto Insurance Law, and civil cases involving constitutional rights violations. Published: Tue, May 29, 2018