If a traffic accident occurs after the OTA upgrade of the smart connected new energy vehicle software, the fast charger catches fire, causing property losses one after another, how will the insurance company recover compensation through subrogation after the insurance company has completed the claim settlement? Can car companies hold the core vehicle operating data and refuse to submit it on the grounds of commercial confidentiality? How to balance local industrial support policies and statutory liability for compensation? The Beijing Financial Court, the Beijing Supervision Bureau of the State Financial Supervision and Administration Bureau, and the Insurance Association of China conducted special research on this issue.
Smart car rear-ended after OTA upgrade and caught fire while charging
In the simulation case, an intelligent network-connected new energy vehicle owned by the car owner Xiao Sun was involved in a rear-end collision. The cause of the accident involved the car company updating the vehicle system software remotely online, which changed the relevant parameters of the vehicle's perceived environment. The insurance company paid 800,000 yuan in advance. Not long after, the car caught fire while charging at the fast charging station. It not only burned Xiao Sun's car, but also ignited two vehicles and three charging piles nearby.
Zhang Xuan, Assistant Judge of the Beijing Financial Court: The fire accident determination letter issued by the fire department states that the cause of the fire does not exclude the possibility that the battery thermal runaway caused the fire during the charging process. In response to the charging fire accident, the insurance company paid 480,000 yuan for the total loss of Sun's vehicle as agreed. After mediation, it paid 520,000 yuan for the loss of two adjacent vehicles, 300,000 yuan for the property damage and outage loss of the charging station, for a total of 1.3 million yuan. After all claims were settled, the insurance company filed a subrogation lawsuit against the car companies, battery manufacturers, and charging operators, requiring the defendants to submit key data such as charging curves, BMS communication logs, and cell temperature records.
Insurance companies sue multiple entities for subrogation
According to the Insurance Law and the judicial interpretation of the Insurance Law, after the insurer pays the insurance money, it shall have the right of subrogation in accordance with the law to claim compensation from the third party who caused the insured accident within the scope of the compensation amount. In the simulation case, there were two accidents involving intelligent connected vehicles. The vehicle, charging pile, communication network, and cloud platform interacted and operated collaboratively in real time. Energy flow and information flow were intertwined. Accident risks are often formed by the superposition of multiple links, which is different from traditional vehicle accidents caused by a single factor. How should the responsibilities be divided between car companies, battery manufacturers and charging operators?
Wang Sisi, a third-level senior judge of the Beijing Financial Court: In this case, we often follow the trial idea of “consolidation of one case, hierarchical determination, and sharing of responsibilities.” The parties can join the lawsuits, and the court can also join the trials, but the merger of procedures does not necessarily mean that they will bear joint and several liability in substance. According to my country's Product Quality Law, vehicle manufacturers cannot claim that batteries and other parts are outsourced, and are exempt from liability for vehicle products. Even if it is ultimately found that the battery cells and battery components are defective, the car company will first pay external compensation, that is, to the insurance company, and then the car company will seek compensation from the battery factory in accordance with the supply chain contract. If charging operators fail to fulfill charging monitoring, safety protection, emergency response obligations, etc., they shall bear corresponding responsibilities according to the degree of their fault.
The judge emphasized that if the causative force can be ascertained, each party shall bear proportional liability in proportion; if the causative force cannot be ascertained, the losses can be shared according to the parties' control over the risk and income situation; only if each party's behavior alone is sufficient to cause all the damage, joint and several liability will be determined.
In the simulation case, the first accident was caused by an intelligent driving software upgrade. Is this invisible software function covered by product liability?
Wang Sisi: OTA upgrade is a vehicle software iteration led by car companies. The software status after the upgrade is regarded as a continuation and update of the vehicle product status. If the upgrade introduces new safety risks, it should be included in product liability. Defects should be classified and identified during the trial: manufacturing and design defects should be determined by judicial appraisal against national standards and technical specifications; insufficient warnings and exaggerated publicity will constitute warning defects, and in serious cases may even constitute fraud. In addition, the advance compensation commitment made by the car company to the unspecified public is a unilateral promise, a unilateral advance payment, and a guarantee of timely relief, which does not mean that it admits final liability for compensation.
Judge's Tips
Based on simulated cases, Wang Yuanyi, assistant judge of the Beijing Financial Court, gave legal tips to car companies, insurance companies, charging operators and car owners.
Wang Yuanyi: Here we also remind car companies that OTA software upgrades are not a talisman against immunity. If software iterations introduce defects and cause damage, product liability may also arise according to law. Key data involved in litigation cannot be refused to be submitted to the court solely on the grounds of trade secrets. We also remind insurance companies that they must adhere to the institutional positioning of insurance to spread risks, negotiate reductions, reductions and recoveries in accordance with the law, and cannot use industrial policies to ignore civil liability. For charging operators, charging monitoring, safety protection and emergency response obligations must be implemented in accordance with the law. We also remind car owners that insurance can spread losses, but it cannot replace the compensation liability that should be borne by the responsible party according to law. Industrial development must always be promoted on the track of the rule of law.
