Autonomous Cars Pose Legal Challenges

By Cory Bilton.

I-66 from Custis Overpass 1 - Aug 2014

Cars that can drive themselves are the wave of the future. Google has been developing a driverless car for years now. In the Washington DC area, local politicians and newspaper reporters are being entertained by autonomous car researchers from Carnegie Mellon University. The idea of removing the human from actively controlling and maneuvering the car is appealing. After all, most accidents are the result of human inattention, aggression, or error. The promise is that autonomous vehicles will greatly reduce, or maybe even eliminate, the effects of those human failings.

But this utopia is not guaranteed, and the path from all vehicles being driven by humans to having all vehicles driven by computers might be a little rough. Here are three issues where autonomous vehicles pose a significant challenge to the legal system:

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Lawmakers Scramble to Classify E-bikes as Bicycles

By Cory Bilton.

Banneker Park 1 - Aug 2014

It could have been a television commercial. On my way home from work one night this week, I was riding on the Custis Trail heading west up the hill from Rosslyn. For those unfamiliar with this particular hill, it’s a long slog; Google Maps reports that it is about 1 mile of distance and 161 feet of elevation gain from the trail when it leaves the Potomac, to the top of the hill where Lee Highway crosses I-66. Not the steepest hill on my ride home, but a little grueling. I typically ride up the hill with as much vigor as I can muster and so by the time I reach the top I’m completely out of breath and dripping sweat. On Monday night this week, near the top of the hill (and near dead), I was passed by a woman wearing office clothes pedaling a bicycle and showing no hint of any effort or discomfort. And when I say she passed me, I mean, she whizzed past me.

The woman was riding an electric bike, or e-bike. For the most part, an e-bike looks just like a normal bicycle. But an e-bike is equipped with a small, battery powered electric motor that assists the rider, particularly on uphill climbs. The motor is not supposed to replace pedaling, like with a moped, but rather just to supplement pedaling. The day after my encounter, an article in the NY Times remarked on the growing popularity of e-bikes in bike-loving Europe. Although I haven’t seen many e-bikes in the Washington, DC area, I think they could become a hit.

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Second Circuit Splits with Fourth Circuit on ERISA Preemption in Wurtz

By Cory Bilton.

Lincoln Mem 2

The preemptive effect of an ERISA benefit plan’s contract language continues to be a hot judicial topic. Although ERISA covers the broad rights and duties of employer sponsored benefit plans and employee beneficiaries, personal injury attorneys are largely concerned only with the narrow issue of the plan’s subrogation and reimbursement rights against injured plaintiffs. Many states limit the subrogation or reimbursement rights of health insurance plans. When a state limits a benefit plan’s right to recover, ERISA plan administrators’ argue that the plan language itself preempts any state law limitations. If the plan’s language preempts state law, the plan gets repaid. If state law is not preempted, the injured person repays less, or sometimes avoids repayment at all.

A couple days ago the Second Circuit issued an opinion, Wurtz v. Rawlings, holding that the plaintiff’s state law claims were neither expressly nor completely preempted by ERISA. A New York statute (§ 5-335) states that health insurers are not permitted to subrogate against a liable third-party or seek reimbursement for medical expenses from an injured person (Virginia has a similar “anti-subrogation” law). Despite this law, ERISA plans in New York were still seeking subrogation or reimbursement, by claiming the plan language preempted the New York anti-subrogation law. The ERISA plans at issue here were insured ERISA plans, which may still be regulated by state laws that are intended to regulate insurance (as opposed to self-funded ERISA plans, the language of which preempts even state laws that regulate insurance). But when the trial judge faced the plan administrator’s motion to dismiss, he held that the plaintiff’s claims were both expressly preempted and completely preempted by ERISA and thus dismissed the claim.

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