It is an age of change in the insurance industry – autonomous vehicles are on the road, and robotaxis are the newest Uber. But when it comes to auto accidents, the question is, how do you pursue the liable party for subrogation recovery if the liable party is not a human? Who – or what – was driving the driverless car? And how do you hold them responsible? In the episode of On Subrogation: Self-Driving Taxi Subrogation below, Rathbone Group attorneys Rebecca Wright and Jason Sullivan take viewers on a ride into modern motor vehicle subrogation.
Autonomous vehicles (AVs) are no longer a futuristic concept – driverless ride-hailing services have become part of everyday transportation in cities across the US. Companies such as Alphabet-owned Waymo now operate fleets of self-driving taxis that transport passengers without anyone sitting behind the wheel. As this technology becomes more common, insurers and subrogation professionals are beginning to confront an entirely novel category of auto insurance subrogation – one that turns the question of liability from semantics to software.
Traditional motor vehicle claims revolve around human behaviors – which driver failed to yield, ran a light, was distracted by their phone, etc. But when a collision involves an AV, a different framework applies, and it is one that is still being built. If there is no human driver operating the vehicle that took an illegal left turn, who becomes the responsible party? More importantly for carriers, how should subrogation claims involving AVs be investigated and pursued?
Learn more about Rathbone Group’s experience in autonomous vehicle subrogation.
Subrogation Investigations: Shifting from Driver Error to Systems Analysis
The aftermath of a standard auto collision involves collecting competing accounts from each driver and reconstructing the accident via witness statements, physical evidence, and police reports. But in a Level 4 autonomous system, where the vehicle assumes operational control, occupants are passengers rather than drivers and so have no responsibility for the actions of the car. As a result, subrogation investigations in autonomous vehicle claims must focus on system analysis, evaluating whether the collision resulted from:
- ownership liability
- software failures
- sensor malfunctions
- coding or logic errors
- hardware defects
- third-party driver negligence
This dramatically expands both the factual and legal complexity of automobile recovery claims. It also takes carriers and subrogation lawyers – professionals skilled in social analyses – into a field most would have no reason to understand, let alone litigate: automation engineering.
Tortfeasors & Liability in AV Auto Insurance Subrogation
Placing liability is the first matter in a subrogation claim; in autonomous vehicle cases, there may be several different parties that carry liability depending on the circumstance:
1. The Robotaxi Company
In many situations, the ride-hailing company will be the primary target. Waymo operates as a subsidiary of Alphabet, Google’s parent company, and owns/ or manages autonomous fleet vehicles used in its ride-hailing service. If the AV makes an unsafe driving decision, the operating company may bear responsibility, such as in cases where:
- The vehicle misjudges traffic flow
- The system fails to recognize a road hazard
- The vehicle executes an unsafe maneuver
- Sensors improperly interpret surrounding conditions
Generally, Waymo has accepted responsibility for incidents involving its vehicles when evidence supports liability. However, as AV use increases, subrogation disputes involving fault allocation and product performance will become more common; the industry will need to structure how it applies corporate responsibility to this new field of motor vehicle subrogation.
2. Parts Manufacturers
As in traditional vehicles, an AV-involved incident may result from physical defects in the vehicle such as a steering component malfunction or a braking system failure. In these situations, the manufacturer of the defective part(s) can become a tortfeasor.
For instance, Waymo’s fleet uses Jaguar vehicles in its autonomous operations. If a crash results from a hardware defect within the vehicle itself rather than the autonomous operating system, the manufacturer may share liability exposure.
This distinction matters because different legal theories may apply depending on whether the failure involved sensor equipment, mechanical systems, manufacturing defects, third-party component failure, etc. Subrogation lawyers handling AV claims must work closely with accident reconstruction experts, engineers, and product liability specialists to determine the actual source of the failure.
3. Third-Party Drivers
If the other vehicle was not autonomous, there is still a human component to consider in driver liability. If a human driver drifts into another lane, rear-ends the AV, fails to yield, etc., the subrogation process may proceed typically, with the only atypical factor being that the victim of negligent driving behavior is the software, not a person. However, investigators must still evaluate the conduct of all vehicles involved in the collision.
4. Passenger Liability
Another unique issue in robotaxi subrogation involves passengers. In traditional auto subrogation, if a passenger fails to wear a seatbelt, interferes with the driver, or otherwise contributes to the incident, they may bear partial responsibility for the injuries. However, Level 4 AVs all but remove passengers from the liability equation.
In fact, many autonomous systems incorporate safeguards that reinforce this principle. Vehicles may refuse to begin operation unless occupants are properly buckled, and passengers are generally unable to manually assume control of the vehicle during a ride.
For subrogation lawyers, this means passenger comparative and contributory negligence arguments may be far less common in autonomous vehicle cases than in conventional automobile litigation; strategic understanding of the legal landscape of the relevant jurisdiction is critical to navigating these new territories in recovery pursuit.
Video Evidence & Evidence Preservation in AV-Involved Claims
One of the most significant differences in AV subrogation claims is the amount of available data. AVs are equipped with extensive camera systems, sensors, vision systems, radar, and lidar that monitor the interior and exterior environment. Like a comprehensive and accessible black box, these systems capture detailed footage and operational data on a continuous basis.
For a subrogating insurer, this evidence can be invaluable, as it replaces subjective stories and witness statements with objective data establishing the series of events before, during, and following the incident. In many cases, this evidence may significantly improve subrogation potential because it quickly and definitively assigns liability, strengthening the stance in pre-suit negotiations and leading to faster, less costly subrogation resolution.
Successfully leveraging this data hinges on preserving the evidence with immediacy, as electronic evidence can be overwritten, deleted, or lost if not promptly preserved. When an autonomous vehicle company is involved, insurers should consider sending a spoliation letter as early as possible. A spoliation letter formally requests that the company preserve relevant evidence related to the collision, including:
- video recordings
- sensor data
- vehicle telemetry
- software logs
- operational records
Although companies may refuse to voluntarily release this information prior to litigation, preservation requests can help ensure evidence remains available later through subpoena or discovery. As autonomous vehicle litigation develops, electronic evidence preservation will likely become one of the most important aspects of claim investigation.
Learn more about Rathbone Group’s auto insurance subrogation services.
The Future of Subrogation Strategy in Autonomous Vehicle Claims
Autonomous vehicle technology is reshaping the legal and investigative landscape for automotive insurance subrogation. While traditional negligence principles still apply in many situations, insurers and their counsel must now evaluate software systems, electronic evidence, hardware failures, and corporate operational practices alongside conventional accident analysis.
The subrogation claims process itself is becoming more technologically sophisticated. Dash cam footage, lidar data, and onboard system recordings may become central pieces of evidence in determining liability and pursuing recovery. At the outset, it may seem like chaos. In the long term, it may be transformative in streamlining subrogation efforts in the auto insurance space.
For subrogation attorneys and insurance professionals, early investigation and evidence preservation are more important than ever. Identifying the proper tortfeasor may require analysis not only of driver conduct but also of software performance, mechanical integrity, and sensor functionality. As autonomous ride-hailing expands nationwide, insurers that understand these evolving issues will be better positioned to investigate claims, establish liability, and maximize recovery opportunities in the next generation of motor vehicle litigation.
For More On Subrogation…
Subrogation law firms like Rathbone Group are prepared for this new wave of high-tech auto insurance subrogation. Our attorneys serve as valuable assets to carriers who want to stay ahead of the legal changes while remaining focused on their core concerns and maximizing subrogation claims recovery across the board.
Curious to learn more about autonomous vehicle subrogation and other developments in insurance law? Find more educational articles like this one in our Subrogation Blog, watch more videos like the one above on Rathbone Group’s YouTube Channel, and listen to our On Subrogation podcast for an array of topics and depths of discussion. Have a question or suggestion? Reach out at blog@rathbonegroup.com to see your idea featured in a future episode of On Subrogation and inquire at info@rathbongroup.com for more about our subrogation services and skilled team of attorneys.