Autonomous and Electric Cars and Trucks: Did They Survive COVID-19? – Arthur D. Spratlin Jr

TLA Feature Articles and Case Notes

Autonomous and Electric Cars and Trucks: Did They Survive COVID-19?

2020 had more than its share of disasters and distractions. The COVID-19 pandemic, working from home, floods, hurricanes, and the election took up much of our capacity to think about anything else. So, what happened in the ongoing development of autonomous and electric vehicles (“AVs/EVs”) while we weren’t looking?

Where Are We? Where Are We Headed?

Level 5 full autonomy is where we are trying to go. That is the goal of most everyone in the business. We will talk more about that below, but if you have ever read an article or heard a presentation on this topic before, you know where it starts—safety.

If you’re afraid of robot cars, you should be terrified of human drivers. In the U.S. alone, there are about 6 million crashes, 2.5 million injuries, and 37,000 deaths per year.1 That is about 100 deaths per day coming from the automotive space, with an estimated 94% caused by human error. So, the goal is “to get the humans out from behind the wheel of the car.” Ironically, while Americans drove some 13% fewer miles during 2020 due to lockdowns and working from home, the pandemic created some bad driving behavior, including excessive speeding and drug and alcohol use. Early estimates for 2020 show an 8% increase in fatalities, with about 42,060 deaths on our roadways.2

Until we get to Level 5, the industry will continue to roll out new safety features, such as automatic emergency braking, front-collision warnings, lanekeeping assist, adaptive cruise control, and blind-spot detection, commonly referred to as advanced driver-assistance system (“ADAS”) technology. You will hear new terms in the next few years, such as CASE mobility (connected, autonomous, shared, and electric). That is the direction we are headed with cars and trucks as we enter the “autonomapocalypse.”

This life-changing description of the future of mobility encompasses not only the AVs/EVs that are forthcoming, but also the change in human behavior that will occur along with their arrival. Autonomy is freedom, the age of the passenger is now, and the age of the driver is over—as reflected in the current statistics showing young people not getting (or in no hurry to get) their driver’s licenses.3 Sixteen-year-olds are not eager to get their licenses like they used to be because they don’t want to be the ones stuck driving; they want to be free to use their cell phones to text or monitor social media.

If you remain skeptical, “follow the money.” The recent mergers and partnerships in this industry have been simply astounding. Collaboration between companies that were once bitter rivals is now commonplace. Recently, Amazon bought Zoox, a California-based “ride-hailing” business, for a reported $1.2 billion.4 Amazon has also invested in Rivian (electric pickup trucks and SUVs) and Aurora, another selfdriving technology company.5 GM is trying to catch up in the EV race, investing in self-driving startup Cruise and reintroducing an all-electric Hummer for 2022. Ford introduced an all-electric F-150 “Lightning” for 2022, which will include “bi-directional” charging, so that your home can charge your pickup or your pickup can supply electricity your home. The long-awaited Rivian electric pickup started deliveries to customers in September 2021. Lucid, TuSimple, Lyft, Uber, Nikola, Lordstown, Li Auto, Nio, XPeng, and Fisker recently went public, so there is an incredible amount of money changing hands in the AV/EV industry. Case in point: Tesla’s market capitalization was recently worth more than the nine largest car companies combined, even though it only accounts for about 1% of global vehicle sales.6

Arthur D. Spratlin Jr.*

Electric Cars

Electrification and autonomy are two different technologies. Some companies are focusing on one or the other, while others are focusing on both. But both technologies are headed along the same trajectory and will impact mobility in the next three to five years and beyond. China is the world leader in EVs, but Europe hit a milestone last year when 500,000 EVs were sold in the first half of 2020—thereby surpassing China.7 There are two primary forces moving these numbers overseas: financial incentives (tax credits) and the deadlines set by many European countries over the next decade for when they plan to go electric (zero-emission) and eliminate fossil fuels.

On August 5, 2021, President Biden signed an Executive Order setting a new national target to make half of all new vehicles sold in 2030 zero-emissions vehicles. President Biden has made boosting EVs a top priority and has pledged to support a massive build-out of EV charging stations. It is also likely that he will support new tax credits and other incentives for

consumers to encourage growth and development in the EV sector. In California, Gov. Gavin Newsom signed an executive order on September 23, 2020, declaring that all new passenger cars sold in California will be zero-emission by 2035. GM recently became the first major U.S. automaker to commit to phasing out all gas and diesel vehicles by 2035 and will offer 30 new EVs globally by 2025. Ford has committed to having 40% of its fleet electric by 2030.

Autonomous Cars

There are a number of new startups fighting for the lead in this space, while the legacy manufacturers are playing catch up.

There are five levels along the way to Level 5 full autonomy, with Levels 0, 1, and 2 comprising most of the cars on the market today, and which require significant amounts of human interaction. As we move up to Levels 3, 4, and 5, there is less human involvement and increasingly more technology. At full Level 5 self-driving, the human does not have any ability to take over the car. It is completely self-driving—meaning no steering wheel or brake pedal. Levels 3 and 4 still contemplate minimal human intervention, when needed.

Some of the leading AV car companies include Waymo, Cruise, Zoox, Aurora, Aptiv, Motional, and Argo AI, with Apple reportedly developing an AV behind the scenes. Waymo is the leader of the pack when it comes to testing its Waymo Driver platform. Waymo One was the first publicly available, paid ride-hailing service operating on a pilot basis and boasts over 20 million miles of testing via actual driving on public roads (and more than 15 billion miles in simulated testing).8 What does it intend to do with all this testing and technology it has amassed? There are four ways it plans to make a profit: 1) ride-hailing robotaxis, 2) urban delivery, 3) long-haul AV trucking, and 4) selling the technology to various automakers.9

Meanwhile, Hyundai and Aptiv joined forces to form Motional, which will partner with Lyft to provide robotaxis across the U.S., similar to Ford’s partnership with Argo AI and Lyft to dispatch 1,000 robotaxis in six U.S. cities in the next few years. In December 2020, Aurora acquired Uber’s self-driving unit, Advanced Technologies Group, giving it an even stronger platform as a leader in both the light passenger and heavy-duty truck space.10

Electric Trucks

In August 2020, a study predicted there would be 54,000 electric trucks on the road by 2025.11 The two main technologies in play are the traditional battery pack (Tesla) and hydrogen fuel cells (Nikola). Interestingly, back in July 2020, and within 24 hours of each other, Tesla and Nikola announced that they were both building new factories to make battery-powered heavy trucks.12 Curious timing? Perhaps it had something to do with the California Air Resources Board’s June announcement of its Advanced Clean Trucks rule, the first limitations on how many diesel-powered vehicles can be sold in California starting in 2024.13 These limitations will increase until 2045, when all new class 2 through 8 vehicles must be zero-emission. Over the next 25 years, California is going to be mandating or limiting how many diesel vehicles can be sold in the state, eventually eliminating them. Fifteen other states have signed some sort of agreement to follow suit to eliminate gasoline and diesel engines by 2050.14 XOS Trucks (formerly known as Thor Trucks) is another traditional BEV truck manufacturer, based in Hollywood, California, that is developing both heavy-duty and “last-mile” medium-duty electric trucks with plans to go public in 2021.

Autonomous/Self-Driving Trucks

Are there any problems with trucking? Safety, accidents, fuel economy, traffic congestion, asset utilization (approximately 50%), maintenance costs, driver shortages, and the variety of issues associated with human drivers, just to name a few. Humans need sleep and restroom breaks, want air-conditioning and salaries with benefits, need training and coaching, get sick, and sometimes they just don’t show up or quit. These are just some of the problems that stand to be corrected with AV truck technology.

Truck driving is one of the most dangerous jobs in the U.S., as evidenced by the 4,415 large-truck-related fatalities in 2018.15 Driver error is to blame for about 90% of those crashes. At the same time, there is a 60,000-person driver shortage in long-haul trucking. AV is a clear solution for both problems because the software doesn’t tire or become distracted; it has a superhuman level of awareness, with the ability to see up to a mile ahead with 360-degree vision; and it can learn. Yes, the trucks will constantly learn from every other truck on the road and will thereby amass much more knowledge than a human driver who drives their entire life. Looking at the numbers from an accident reconstruction standpoint, a human truck driver’s perception-reaction time is generally two seconds, whereas the AV truck reaction time is less than 100 milliseconds—and the truck can see a mile ahead.

There has been a recent shift in focus among many AV industry leaders, who now realize there may be a quicker pathway to market—and a more immediate economic benefit—in the AV trucking space than in the AV car market. The obvious reason is that the trucks are being trained to drive on rural interstate highways, which is relatively easy compared to urban driving. Hence, AV technology is likely quicker to market and more likely to provide an economic benefit in the trucking industry before it pays off in the AV car industry.

There are several major players here, including Waymo Via, TuSimple, Kodiak Robotics, Embark, Aurora, and Plus. TuSimple went public in April 2021, becoming the first public driverless vehicle company. Embark, Aurora, and Plus are expected to go public via a special purpose acquisition company this year. Waymo Via, TuSimple, Kodiak, and Aurora are all currently hauling loads in Texas. In fact, the “Texas Triangle” is the new hot spot for AV truck testing, which includes the five largest cities in Texas. There are numerous partnerships and alliances forming between the new AV truck startups and established trucking companies, such as Waymo Via hauling loads for J.B. Hunt and TuSimple partnering with Ryder to use its national network of fleet maintenance facilities for terminals.

As for traditional truck manufacturers, Daimler offers a Detroit Assistance 5.0

package, featuring a suite of ADAS safety systems and active brake assists, available now on its 2021 Freightliner Cascadia. So far, 90% of its customers have ordered the package, which provides for Level 2 autonomy. Daimler acquired Torc Robotics in 2019 and has been testing in Virginia, while recently announcing the opening of a new test center in Albuquerque, with a goal to bring Level 4 trucking to the road within the decade.

The business case for AV trucks is simple when considering the salary and expense of hiring a driver, the hours-ofservice restrictions and corresponding restrictions on asset utilization, and the cost of liability insurance. It is a no-brainer for trucking company executives who have the option to buy an “add-on” piece of selfdriving equipment for $5,000, or the option to buy a new truck that comes fully loaded with AV technology, allowing the truck to operate longer hours, alleviate the driver shortage, and take human error out of the equation.

Driver Training/Coaching

Another benefit of the latest truck technology and ADAS is the enhanced availability for driver coaching. Several companies are developing tools that will use video telematics and dashcams to coach drivers. The technology can alert drivers to the fact that a particular intersection, at a certain time of day, is registering an unusual number of “near misses” or collisions at the same spot for multiple drivers. Armed with this information, drivers know to adjust their route to avoid the intersection during high-risk time periods, reducing their exposure to and possibly avoiding future accidents.

Nearly 25% of fatalities and 50% of injuries occur at intersections, many of which involve rolling stops.16 Lytx, a San Diego-based telematics company, is combining its machine vision and artificial intelligence (“AI”) technology to trigger rolling stops. Using the machine vision as the eyes (to recognize a stop sign) and the AI as the brain (to assess the speed), the system can flag a rolling stop that can be used for training purposes.

Bendix Wingman has the Fusion system, which can slow trucks down by up to 50 miles per hour, eliminating 70% of rear-end crashes.17 Bendix also offers Safety Direct, a program that can identify good and bad driving behavior to see what is causing “near misses” to coach drivers and prevent future catastrophic events.

Truck Driving Jobs?

In addition to being one of the most dangerous jobs in the U.S., truck driving is also one of the most common. In 2019, there was an estimated 3.5 million truck driving jobs in the U.S.18 So, what happens to all the truck driving jobs when AV trucks reach universal acceptance and are produced at scale? There is a big debate, with proemployee groups arguing that the “robot trucks” will eliminate most if not all truck driving jobs in the future.19 On the other hand, the trucking industry and AV developers argue that there is a 60,000-person driver shortage now, which is projected to get worse in the next few years. They argue that the ADAS technology will (at least in the short term) act only as a “driving assistant” and human operators are still needed; AV/ ADAS technology will make the job less stressful, thereby making it easier and more desirable; the corresponding increase in talent among new job applicants will help get better truck drivers; and the AV technology will apply primarily to long-haul operations using an exit-to-exit strategy, which will get the long-haul drivers home more often and create an offsetting number of “last-mile” local delivery jobs to replace any loss in “long-haul” jobs.20

Insurance and Liability

If there is no driver in the car, or if there is a driver but no steering wheel, how can there be any driver negligence? If there is an accident, then there must be a product liability claim. The expectation is that there will be fewer accidents caused by human drivers (resulting in fewer traditional negligence claims) and more liability shifted to the car itself. It follows then that there will be less traditional auto insurance purchased by the driver, and more product liability coverage purchased by the manufacturer.

Is this the end of personal auto insurance as we know it? Several car manufacturers have stated publicly that they will be responsible for accidents that occur if their vehicle is in self-driving mode. Inquiries into who or what is responsible for an accident will consist of determining who owns the operating system, whether a software failure caused the accident, and who owned the software, which may or may not be the manufacturer of the car. Do you treat the AV like a human, under traditional negligence principles, or do you treat it like a piece of equipment, under product liability law? For now, even if you are in selfdriving mode, there is a gray area where warning systems alert the driver to take control of the car in certain situations. Did the human driver take control of the car within a reasonable time after being warned, or did the human fail to acknowledge the warning altogether? To develop AV technology faster, there have been theoretical discussions of a national workers’ compensation–type system, known as a manufacturers’ enterprise responsibility fund, that will assist with accidents involving AVs.

A New Theory of Liability?

The advancements in truck technology are already leading to the creation of new theories of liability from the plaintiffs’ bar. Should the truck have been equipped with the latest technology or ADAS, which would have prevented the accident? Was the trucking company negligent for failing to properly equip its fleet?

How do you defend this? Obviously, every truck on the road today is not going to get the latest technology upgrade overnight. First, you rely on the National Highway Traffic Safety Administration (“NHTSA”) and show that the ADAS technology is not required by NHTSA, is not yet approved by NHTSA for heavy trucks, or may not be commercially available from the manufacturer. The ADAS technology may still be in the testing phase, may not be sufficiently validated, or may not be sufficiently reliable at this time. Further, the plaintiff would have to prove that the specific technology would have prevented or mitigated the accident.

Other questions to consider: When does the trucking company’s obligation to

add this new technology ripen? What is the cost of the new technology? Can the carrier reasonably afford to install the new technology across the entire fleet at once? There are very few carriers, even major carriers, who could afford to do that. Even if they did, it would be an investment in ADAS knowing that it will likely be outdated soon, leading to a circular argument and begging the question of “when do you pull the trigger?”

If this “failure to use the latest technology” theory is raised, the trucking company must show it is using reasonable efforts to stay abreast and considering new technology as it is introduced, perhaps choosing to install it on a limited or trial basis until it is thoroughly vetted and accepted in the scientific community, and until it is reasonably affordable. Consider the small mom-and-pop trucking company versus a major national carrier and their relative economic wherewithal to experiment with new technology, purchase add-on equipment, or afford to purchase new high-tech tractors for their fleets. As Level 2 (and above) tractors with ADAS technology become more readily available and the pricing levels out, there will be a closer question of “if affordable, should the company have ordered the Detroit Assistance 5.0 package that was available at the time?” There will always be a cost-benefit analysis of whether the savings created by the reduction of accidents makes up for the cost of the additional safety features, bearing in mind that avoiding one catastrophic crash or one nuclear verdict could cover the cost of the new technology.

As fleets age and new smart trucks come to market, we will gradually see older trucks rotate out of the fleet as the technology evolves to a point where things like automatic emergency braking are the new standard, and likely required by NHTSA. NHTSA is presently conducting tests on heavy trucks and is now in Phase 2 of field studies to determine whether, when, and what new ADAS technology it will mandate on heavy trucks. Meanwhile, the Federal Motor Carrier Safety Administration (“FMCSA”) launched its Tech-Celerate Now program in February 2020 to explore and understand the adoption of current ADAS technology and assess future ADAS technologies, all with the goal of accelerating adoption, reducing crashes, saving lives, and realizing substantial return on investment through increased safety and other long-term benefits. On the flipside, all this technology may lead to the odd result of lawsuits claiming the truck had too much technology that caused an accident!

Crash investigations will likewise hinge on a determination of traditional driver error versus a software failure. The new ADAS technology and crash prevention systems will lead to the creation of a new breed of expert engineers who will use the software to recreate the accidents and determine the causes without traditional investigations. These new AV trucks will be data hogs, chock-full of useful information for accident reconstruction. While we currently rely on accident scene investigations, drone photos, measurements, and ECM data for speed and braking, in the future engineers and accident reconstructionists will likely be able to fully recreate the accident without ever leaving their desks.

The Effect of COVID-19?

Did the pandemic accelerate or postpone the adoption of AVs? From a production standpoint, the new normal of working from home affected the industry, and there were surely supply chain issues; but from a broader perspective, the new opportunities created by the coronavirus served to accelerate the overall public adoption of AVs. While hunkered down at home, the public realized the importance of having delivery drivers who do not get sick. Even the naysayers realized “contactless delivery” was a keen idea during a pandemic. The pandemic highlighted the many issues that AV technology can help solve. But the big winner in the post-COVID-19 AV space may be the increase in consumer acceptance and adoption.

Conclusion

As the public consumes a steady dose of AV news on social media, flashy product launches, and public stock offerings, and gets used to the ADAS technology in their new passenger cars, the question continues to be, “when will the AVs take over?” Many AV companies have already set a target—and missed it. We have already sped past several projected timelines, such as the supposed mass deployment of self-driving taxis by 2019, so the sprint to develop self-driving cars has become more of a marathon. Regardless, the future of AVs remains bright and the roadmap to our AV future continues to be drawn, but with a few new caution lights, yield signs, and detours added here and there.

Endnotes

1 Facts + Statistics: Highway Safety, Ins. Info. Inst., www.iii.org/fact-statistic/facts-statistics-highway-safety (last visited Jan. 19, 2021). 2 Associated Press, Traffic deaths rose 8% in 2020, even as Americans drove fewer miles during pandemic, USA Today (March 5, 2021), www.usatoday.com/story/money/cars/2021/03/05/pandemic-travel-traffic-deaths-up-8-2020-despite-driving-less/4590942001/. 3 Nathan Boney, Millennials Spurn Driver’s Licenses, Study Finds, USA Today (Jan. 19, 2016), www.usatoday.com/story/money/cars/2016/01/19/drivers-licenses-uber-lyft/78994526. 4 Darrell Etherington, Amazon to Acquire Autonomous Driving Startup Zoox, TechCrunch (June 26, 2020), https://techcrunch.com/2020/06/26/amazon-to-acquire-autonomous-driving-startup-zoox. 5 Neal E. Boudette, Amazon Invests in Rivian, a Tesla Rival in Electric Vehicles, N.Y. Times (Feb. 15, 2019), www.nytimes.com/2019/02/15/business/rivian-amazon.html. 6 Michael Wayland & Lora Kolodny, Tesla’s Market Cap Tops the 9 Largest Automakers Combined—Experts Disagree about If That Can Last, CNBC (Dec. 14, 2020), www.cnbc.com/2020/12/14/tesla-valuation-more-than-nine-largest-carmakers-combined-why.html. 7 Jasper Jolly, More Than 500,000 Full Electric Cars Sold So Far This Year in Europe, The Guardian (Dec. 3, 2020), www.theguardian.com/business/2020/dec/03/more-than-500000-full-electric-cars-sold-in-europe-in-10-months.

8 Off Road, but Not Offline: How Simulation Helps Advance Our Waymo Driver, Waymo Blog (Apr. 28, 2020), https://blog.waymo.com/2020/04/off-road-but-not-offline--simulation27.html. 9 Waymo Tests “Rider Only” Service and Looks Beyond Robo-Taxis, Reuters (Oct. 28, 2019), www.reuters.com/article/us-autos-selfdriving-waymo/waymo-tests-rider-only-service-and-looks-beyond-robo-taxis-idUSKBN1X71U7. 10 Aurora Is Acquiring Uber’s Self-Driving Unit, Advanced Technologies Group, Accelerating Development of the Aurora Driver, Uber Inv. (Dec. 7, 2020), https://investor.uber.com/news-events/news/press-release-details/2020/Aurora-is-acquiring-Ubers-self-driving-unit-Advanced-Technologies-Group-acceleratingdevelopment-of-the-Aurora-Driver/default.aspx. 11 US Electric Truck Sales Set to Increase Exponentially by 2025, Wood Mackenzie (Aug. 10, 2020), www.woodmac.com/press-releases/us-electric-truck-sales-set-to-increase-exponentially-by-2025. 12 Kirsten Korosec, Tesla Picks Austin for Its Next US Factory to Build Cybertruck, Semi Truck, Model Y, TechCrunch (July 22, 2020), https://techcrunch.com/2020/07/22/tesla-picks-austin-for-its-next-u-s-factory-to-build-cybertruck-semi-truck-model-y; Nikola Corporation Breaks Ground on

Coolidge Multi-Product Factory 4.0 Manufacturing Facility, Nikola Motor (July 23, 2020), https://nikolamotor.com/press_releases/nikola-corporation-breaks-ground-on-coolidge-multi-product-factory-4-0-manufacturing-facility-86. 13 See supra note 8. 14 Peter A. Tomasi et al., California’s Drive for Zero-Emission Vehicles Continues, Nat’l L. Rev. (Oct. 6, 2020), www.natlawreview.com/article/california-s-drive-zero-emission-vehicles-continues. 15 Large Truck and Bus Crash Facts 2018, Fed. Motor Carrier Safety Admin., www.fmcsa.dot.gov/safety/data-and-statistics/large-truck-and-bus-crash-facts-2018 (last visited Jan. 19, 2021). 16 Nat’l Highway Traffic Safety Admin., Analysis of Fatal Motor Vehicle Traffic Crashes and Fatalities at Intersections, 1997 to 2004 (2007). 17 Fusion, Bendix, www.safertrucks.com/fusion (last visited Jan. 19, 2021). 18 Jennifer Cheeseman Day & Andrew W. Hait, Number of Truckers at All-Time High, United States Census Bureau (June 6, 2019), https://www.census.gov/library/stories/2019/06/america-keeps-on-trucking.html. 19 Aarian Marshall, The Human-Robocar War for Jobs Is Finally On, Wired (Sept. 29, 2017), www.wired.com/story/trucks-robocar-senate-war. 20 Michael Jaeger et al., Challenges for the Autonomous Trucking Industry: Part 1, Law360 (Dec. 3, 2020), www.law360.com/articles/1334034/challenges-for-the-autonomous-trucking-industry-part-1.