Autonomous vehicle transport does not fully solve this problem – you still need to have a way to complete a delivery, either in person or to some automated, secure delivery site. However, you remove the ability to force a driver to turn over product by removing the driver. You also remove the ability of a driver to conspire with others to rob a shipment as the autonomous vehicle could theoretically be programmed to not perform any unintended stops until it reaches its delivery location. This may also benefit both companies and insurers by reducing the need for certain types of policy inclusions regarding theft and/or robbery. Additionally, it could reduce potential coverage disputes surrounding how a theft occurred and whether a policy exclusion related to the involvement of company employees bars recovery.

What about safety concerns such as lowering the risk of accidents or reducing the number of lawsuits? In theory, accidents should be reduced when a vehicle is controlled by a computer, with hundreds of cameras, performing thousands of analyses of all possible scenarios while the vehicle travels on the roadway. However, accidents will still occur as evidenced by the May 2022 crash involving a large autonomous vehicle company's tractor trailer.

On May 5, 2022, a modified Peterbilt tractor-trailer, operating in autonomous mode with a human safety operator behind the wheel, hauled a trailer northbound on Interstate 45 toward Dallas, Texas. The autonomous tractor-trailer traveled in the far-right lane when a passing tractor-trailer entered its lane and forced it off the roadway.

The autonomous tractor was not at fault in this accident. However, what if another vehicle had been struck by the autonomous vehicle after it was forced from its lane? Although there was a safety driver present in the vehicle, the driver did not take control of the autonomous vehicle. But what if the driver had taken control? Could the manufacturer of the autonomous vehicle still be sued? What if the safety driver decided not to take control because they believed the autonomous truck would have avoided any further accidents? How would that affect any claims? The answers at this time are unclear, though it is my opinion that the manufacturer of the autonomous truck would have strong arguments in its favor against any lawsuit. I would anticipate however, a hybrid negligence/product liability suit being brought which unfortunately would result in not only the shipping company being sued, but also the manufacturer, distributor and retailer of the autonomous truck.

That leads to one final interesting area of transportation law: the intersection between autonomous vehicles, transportation companies and 49 U.S.C. 30106(a) also known as the "Graves Amendment". Under the Graves Amendment, the owner of a leased or rented motor vehicle cannot be held vicariously liable "for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles and there is no negligence or criminal wrongdoing on the part of the owner."

Most of the time, case law bars lawsuits against the lessor, unless an accident is caused by the lessor's negligence (which is rare). However, because autonomous vehicles are such new technology, it is possible (and likely) that any and all maintenance is performed by the owner of the vehicle, as opposed to the lessee. This could open the door to not only typical negligence claims, such as negligent driving and maintenance, but also product liability claims, such as defective design.

One thing to pay close attention to in situations such as this is the lease agreement between the autonomous vehicle owner and the lessee. A leasing company/owner will want to be clear about which entity is responsible for the management, control and supervision of the vehicle in question, as the failure to do so could result in insurers excluding certain claims as barred based upon both contract language and insurance policy language. While the "Graves Amendment" bars negligence claims against vehicle-rental companies based solely on a theory of vicarious liability, it does not, on its face, bar product liability claims.

Autonomous vehicle companies, like any trucking/distribution company, will need to keep very detailed records regarding the testing, maintenance and upkeep of the technology that operates their vehicles. Remember that in a product liability action, every entity from the distributor to the manufacturer can be held liable. If a products liability claim such as defective design is raised, the Graves Amendment may not be enough to have all claims dismissed. This raises a new layer of liability exposure to autonomous vehicle companies/lessors and these companies should carefully consider what companies they sell/lease their vehicles to moving forward.

Both cannabis and autonomous vehicles are incredibly new and fast-paced industries that are evolving on an almost daily basis. The likelihood of them intersecting is almost inevitable and because of this, the need for clear, succinct and concise insurance policies that define when coverage is excluded is a necessity. Overall, it may be too early to tell whether autonomous vehicles are the answer to cannabis distribution. Although autonomous vehicles may provide many benefits to the cannabis industry, such as additional security and statistically fewer accidents, there are still causes for concern.

Adam R. Dolan is a partner at the litigation law firm of Gfeller Laurie LLP in New York City. He may be reached at: [email protected].

Madison E. Calkins is an associate with Gfeller Laurie LLP. She focuses her practice on general liability defense along with insurance coverage. She may be reached at: [email protected].