Category: Insurance

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Robot Rights and Liability: Do they need legal rights? Here’s what one expert witness has to say…

Have you been following the advancements in artificial intelligence and robotics? There are some really fascinating developments in the fields. Just this week I’ve read about artificially intelligent systems used to identify people likely to commit a crime (before it happens); robotics systems being used in construction; unmanned aerial vehicles; self-driving cars; and, of course, it seems a week cannot go by without a new headline about sex robots.

Last Friday, I found some news stories that were really interesting. It appears a 2017 report from the European Commission had “a paragraph of text buried deep in a European Parliament report, that advised creating a ‘legal status for robots,'” according to this article from The Daily Mail.

I found this quite fascinating and had to dig deeper. Why would we need to develop a legal status for robots? What would be the point? An article in Futurism stated, “If a robot, acting autonomously injures or otherwise wrongs a human, who will be held responsible? Some European lawmakers think that the best way to resolve this question will be to give robots ‘electronic personalities,’ a form of legal person-hood.”

To me, there is a simple answer to this topic. The owner and/or the manufacturer would be held liable. Why would society need something beyond existing negligence, product liability, and consumer protection laws?

According to the report, the European Commission does not want to give robots legal status equal to humans. Rather, they want to give them a status similar to corporations. The concern doesn’t seem to apply to your automation-style robots, but rather those capable of self-learning.

I contend we do not need new theories of liability to address this issue. It should be handled just like owning an automobile. As the owner of a car, I must have it insured. Insurance covers personal injury and property damage caused by the vehicle if I am driving it or if another driver is covered by my policy. If the vehicle malfunctions and causes damage due to a manufacturing, design, or warning defect, then I sue the manufacturer (or another injured party may sue the manufacturer). As such, owner and manufacturer are the responsible parties. My automobile doesn’t require its own legal status.

A robot, sentient or not, does not require its own legal status. It can be insured just like an automobile and the owner should be responsible for insuring the equipment. Furthermore, if it malfunctions and causes harm, the manufacturer can be held liable for any product defects.

I have asked for some input on this topic from a couple of our Experts.com members. At the time of this writing we have received a response from one expert. Dr. Harry Direen, PhD, PE, has a wide variety of expertise including electronic systems, control systems, robotics, software, signal processing, UAV’s/drones, and more. I encourage you to check out his company DireenTech.

Several questions were posited to Dr. Direen. Please see the questions and answers below.

What the expert has to say:

Me: Do you see any need for creating a legal status for robots?

Dr. Direen: No… robots are not humans, they are machines.  Despite the hype, I do not believe robot technology is anywhere near thinking on their own or being responsible for their actions.

Me: Are there any positive reasons to create a legal status for robots?

Dr. Direen: No, not that I know of.

Me: Are there any negatives you can think of in creating a legal status?

Dr. Direen: Yes, as a society we start legally blurring the lines between humans and the machines we create.  I don’t believe we elevate humans in the process, but just the opposite.  We advance the myth that humans are little more than carbon based machines with no more value than the machines we create rather than highly valued creations of our Creator.

Me: Is there any reason damage caused by robots cannot be addressed by existing legal principles such as product liability (manufacturing, design, or warning defects)?

Dr. Direen: No. Giving robots legal status would simply be an excuse to divorce engineers, designers, and manufactures from the responsibility of their products.

Me: If a robot were to fail and cause personal or property damage, would a forensic investigation apply the same principles as any other failure analysis investigation?

Dr. Direen: Yes, a robot is just a piece of technology like any other.

So there you have it. Dr. Direen and I seem to be in agreement. Existing legal and investigatory principles should apply to robots. There is no need to provide additional legal protections to machinery.

What do you think? Feel free to comment below and let me know your thoughts. It is a fascinating topic. Robotics is a field where I anticipate a great deal of future litigation. As the topic evolves, I’m certain we’ll be discussing it in greater depth.

 

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California Wildfires: Personal Analysis of Expert Information

Approximately two months after the horrific fires in Northern California (Santa Rosa, Napa, etc.,) we are witnessing catastrophic wildfires tearing through the Southern California landscape. Unlike the fires in October, I have not noticed any smoke or ash in the air this week. However, I am keeping a close eye on the fire activity in the Los Angeles area and have maintained communication with friends who are being impacted by the devastation.

Watching the news and reading the articles on this matter led me to read some articles, by fire experts, on our website. I wanted to pull together some information that might prove useful for those suffering immense loss and even displacement. Here is what I learned from Experts.com members:

Collect the Evidence – Document, Document, Document:

Once the fires are extinguished, you are going to be dealing with your insurance company. Your home, office, vehicles, and other property do not need to be engulfed in flames to suffer damage. Being in the region of a fire can cause costly soot damage to both real and personal property.

For example, let’s assume your home suffered some soot damage as a result of wildfires in your region. When your insurance adjuster comes to review the damage to your property, they are going to want to know if it was a common source of residential soot or the result of regional wildfires. Here are some common causes of residential soot as described in an article by Member EFI Global.

  • Smoking
  • Candles
  • Fire Places
  • Cooking
  • Heater malfunctions
  • Wildfires nearby
  • Interior fires (cooking, appliance etc.)

The article goes on to state, “localized soot over stoves, fire places, heater vents, and used candles is explainable to those sources and is generally not a covered loss.” This is why I believe it is important to document!

If you are noticing soot damage to your home as a result of the wildfires, you should begin taking your own photos and video to properly document areas of damage you have found since the fires began. You do not want your insurance adjuster to arrive, do their own investigation, note the areas above, and claim these are the result of the soot damage in your home. Make sure you have your own documentation of these areas and other areas damaged by soot.

The documentation should take place inside and outside the home. I have seen several pictures of fire retardant found on neighborhood streets, vehicles, and homes. If the fire retardant hit your property, make sure to document the exterior of the home for fire, smoke, and other damage related to extinguishing the fire.

If you can locate pictures from before the fire. Do it! Get some before and after photos assembled to help present the damage you see to your home.

Review Policy & Contact Insurance Provider:

Granted, most articles online will probably tell you to do this first. I am assuming you’re doing this at about the same time you are collecting your own evidence to provide to the adjuster.

Upon reporting the damage to your insurance company, you should inquire as to who may be able to assist with fire restoration in your region. Remember, if flames actually reached your home and water was used to extinguish the flames, you have to be cognizant of the potential for mold. This is why you want to find someone competent with fire restoration protocols. Your insurance should be able to guide you to finding the right provider.

Separate the Good from the Bad:

It is possible portions of your home remain undamaged. If this is the case, you’ll want to separate items that are damaged from those that are undamaged.

By separating the items you prevent further harm to the undamaged portions of your home. The separate section of damaged property will actually serve as your inventory for your insurance provider. It will help you to establish what was lost and what should be covered.

Take Care of Each Other:

Do not forget, fires are life altering events. We have experienced some catastrophic wildfires in California this year. The losses are felt throughout many neighborhoods. In preparing for this post, I found this article from the Napa Valley Register. It shares the story of a man who has lost a house in Santa Rosa, only to find out that his original home (turned rental) was destroyed in the Ventura fire this week.

If you can, reach out and help your neighbor. Help someone in your community. If you are insulated from the wildfires, maybe just write a blog post providing some information for those you know who have been impacted by the devastation.

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Insurance Expert Witness on Litigation and Selection of Experts

Andrew J. Barile, CPCU, CEO, of Andrew Barile Consulting Corporation, Inc., has over 40 years of experience in the Property Casualty Insurance and Reinsurance Industry. He is the co-founder of the first publicly held Bermuda reinsurer and is on the board of both domestic and offshore insurance companies. Mr. Barile has an MBA from Stern’s (NYU) business school, and has won the AngloAmerican Fellowship to study at Lloyd’s of London, with his thesis on the captive insurance company.

In a recent article, he writes,

“The versatile Insurance Industry Expert is being selected by insurance industry litigation law firms throughout the country. Since many cases involve millions of dollars of litigation exposure, it is important to have an experienced insurance industry expert who brings the element of persuasion and accuracy into the mix.

Insurance experts that have been retail insurance brokers, wholesale insurance brokers, excess and surplus lines insurance brokers, managing general agents, reinsurance intermediaries are very helpful in winning cases because they possess practical industry experience…”

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Expert Witness Insurance?

One question on the minds of Expert Witnesses more than ever is, “Do I need professional liability insurance?” That is not an easy question to answer.  Experts have always received  immunity from professional malpractice claims, however, there has been a trend toward allowing retaining parties to sue their Expert Witnesses for negligence.

In order to prevail, Plaintiff must prove that the testimony given is not on par with the Expert’s standard and that Plaintiff would have won the case “but for” the Expert’s negligence.  This standard is difficult to prove and requires a “trial of the Expert within the actual trial.” If found negligent, the Expert can only be held liable for the actual harm caused to Plaintiff. (Mattco Forge V. Arthur Young & Co.).

Avoiding Liability
According to the A-Z Guide to Expert Witnessing (Babitski, Mangraviti, and Babitski), the following tips will help Experts avoid professional liability.

  • Testify Truthfully
  • Be Well Prepared, Careful, Competent
  • Appear As Agreed
  • Maintain E&O Insurance
  • Understand the Daubert Test of Admissability of Testimony
  • Do Not Destroy, Misplace or Lose Evidence
  • Avoid Being “Agreed Upon” Expert To All Parties (Lose Adversarial Immunity)
  • Avoid Conflicts of Interest
  • Seek Legal Counsel In Drafting Contractual Language In Engagement Letter
  • Be Discerning As To Which Attorneys You Work For

With the absence of Expert Witness immunity, we would like to pose the following questions:

1. Should the party hiring the expert be entitled to sue the expert for malpractice?
2. Should the party that the expert testifies against be allowed to sue the expert?
3. Is professional liability insurance something that every Expert should consider?
4. What are the implications of Experts having to carry Professional Liability (E&O) insurance?

This post does not even break the surface of the case law or circumstances under which this topic could arise. It is simply intended to bring about discussion. Please leave a comment to answer the above questions, share any experiences you may have had, or opinions you hold on this subject.