Guest opinion: Michigan has work to do to makes its auto laws as smart as its autonomous cars

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By Stephen H. Sinas
The Law Firm of Sinas Dramis

The auto industry, particularly here in Michigan, is working hard to improve vehicle safety by developing exciting new automated technologies that will result in computers taking an increasingly active role in the operation of our vehicles. Vehicles with temporary autonomous driving capabilities are already in operation. Auto manufacturers are now anticipating that fully autonomous, self-driving vehicles will be on our roads within the next few years.  These technological developments are significant because they will reduce crashes and make our roads safer. But crashes involving autonomous vehicles will undoubtedly still happen. And, when they do, what will be the legal rights of people injured in such a crash?

While the technology of autonomous vehicles is rapidly advancing, the legal framework is lagging and faces an uncertain future.  The federal government, through the United States Department of Transportation and National Highway Traffic Safety Administration, is attempting to establish various uniform standards for the operation of autonomous vehicles on our roadways, but this work is far from complete. The states have been left to decide critically important issues, such as the legality of the operation of these vehicles on their respective roads, the rights and duties of people in relation to autonomous vehicles and all matters relating to auto insurance.

To date, 21 states—including California, Colorado, Florida, Illinois, Michigan and New York —have enacted legislation related to autonomous vehicles.  However, most of these laws are limited and do not address a variety of the significant issues that arise regarding the rights of people injured using autonomous vehicles.

Many people do not realize that Michigan has passed some of the nation’s most significant laws regarding autonomous vehicles. It is now completely legal to operate an autonomous vehicle on Michigan roads. These new laws are exciting because they further the advancement of these technologies here in Michigan.  As further explained below, however, these laws also create uncertainty and ambiguity for the rights of people injured in crashes involving autonomous vehicles as the result of a glaring contradiction in the current statutory framework.

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 took it one step further and made it lawful for autonomous vehicles to operate on Michigan roads without restrictions. See MCL 257.606b(2), 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. 

It is fair to say that the Legislature’s primary motivation for enacting the 2013 and 2016 laws was to promote the advancement and development of autonomous vehicles and ultimately allow them to operate on Michigan roads. These laws were not developed for the purpose of providing clear and established rights for people injured in crashes involving autonomous vehicles. Nor were they developed to provide any clarity and guidance on how auto insurance should apply. Moreover, these laws did not simply stay silent on the rights and duties of human beings in relation to autonomous vehicles. Rather, 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 as follows:

“[c]causing 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 declares that the legal operator of an autonomous vehicle is deemed to be the automated driving system itself, as opposed to the human being who put the technology into operation. Specifically, MCL 257.665(5) 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 do not provide a clear 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.  This contradiction will result in an array of unresolved legal issues for people involved in such a crash.  

In the criminal law context, this issue is of critical importance, particularly given that the status of being an “operator” of a vehicle is what imposes criminal liability under the Michigan Motor Vehicle Code. Therefore, this unresolved issue means that it is not 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, the contradiction of who qualifies as the operator of an autonomous vehicle could also have significant implications for the rights of people injured in crashes involving these vehicles. 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 potential complicated 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” is a concept that is particularly important 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.

One thing is clear:  the Michigan Legislature has more work to do to make Michigan’s automobile laws as smart as its autonomous vehicles. Lawmakers needs to address larger questions about the rights and duties of humans in relation to autonomous vehicles. These larger issues will not be properly addressed if lawmakers continue to deal with autonomous vehicles separately from the ongoing debate about our auto insurance laws. After all, the emergence of autonomous vehicles will most certainly have a direct and substantial impact on the future of auto insurance here in Michigan.  The two are inextricably linked.

Disappointingly, however, there is no indication that the Michigan Legislature is attempting to address these two issues together. Rather, recently proposed legislation to repeal the Michigan Auto No-Fault Insurance Law and replace it with a system wherein all auto crash damages are only recoverable from at-fault drivers demonstrates a total lack of appreciation for our future with autonomous vehicles. As we embark upon that future, 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. 

 

 

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