Saturday morning, I took my kids to one of their extracurricular activities and, as is our custom, struck up a conversation with one of the other kids’ parents, a doctor. He told me a story about when he was buying his house (a new house from a homebuilder): the contract included a 1-year warranty for defects in the house, but excluded problems caused by “Acts of God.” Reasoning that an “Act of God” could mean anything — it is indeed a central tenet of the Abrahamic religions that God is omnipotent and omnipresent — he crossed it out with his pen and initialed the change.
When it came time to sign the documents, the homebuilder’s agent looked at the scribble, shot a glance at the man and his wife, and said, “so who’s the amateur lawyer?” The man opened his mouth to explain, his wife gave him that look, and the “Acts of God” language was restored. Thankfully, nothing went wrong with the house that first year, and so he was spared further theological or marital arguments.
I told him that, though the phrase was on its face ambiguous, there was caselaw interpreting “Acts of God” — regularly used in construction, insurance, transportation, and other contracts — to generally mean completely unforeseeable events, and there was a whole body of law relating to the interpretation of these “force majeure” clauses. “So,” he asked, “would Hurricane Sandy be an ‘Act of God’”?
Good question! My off-the-cuff answer was: it depends on what geographic location and what damage you’re talking about. Here in Southeastern Pennsylvania, although Hurricane Sandy was itself unusual in how it came about — i.e., a warm hurricane being pulled into a cold, low pressure front — the mere fact of a strong storm with high winds was certainly not unforeseeable. Similarly, anyone who lives on the beach anywhere in the world runs a risk of a major storm surge flooding their home entirely. The trickier issue would be, say, Lower Manhattan, which was damaged primarily by a 100-year flood.
But I kept thinking about the issue: would Hurricane Sandy be an “Act of God” as written in most contracts? Finding the answer took me through several wonderful opinions by the late, great former Pennsylvania Supreme Court Justice Michael Musmanno. (He’s like Pennsylvania’s version of Justice Holmes: he wasn’t right about everything, but his opinions had such style, wit and grace, they couldn’t be ignored.)
Let’s start first with the basics. “Act of God” is both a clause in contracts, and a common law defense to contract cases, that allows someone sued for breach of contract to avoid liability. In Pennsylvania, the law is in general:
It is well-established that the affirmative defense of vis major or force of nature (formerly “Act of God”) is the concept of a natural force of such inevitability and irresistibleness that man cannot cope with it, either to predict, forestall it or control it when it arrives. It is also defined as an unusual, extraordinary, sudden and unexpected manifestation of the forces of nature which cannot be prevented by human care, skill or foresight.
Woodbine Auto v. Southeastern Pa. Transp. Auth., 8 F. Supp. 2d 475 (E.D. Pa. 1998)(cites and quotes omitted).
In the Hurricane Sandy states (as in every state I know of), it’s tough to prove the “Act of God” defense, and force majeure clauses are interpreted against the party that asked for them. Kel Kim Corp. v. Cent. Mkts., Inc., 70 NY 2d 900 (N.Y. Ct. of App. 1987)(“For much the same underlying reason, contractual force majeure clauses — or clauses excusing nonperformance due to circumstances beyond the control of the parties — under the common law provide a similarly narrow defense. Ordinarily, only if the force majeure clause specifically includes the event that actually prevents a party’s performance will that party be excused.”); Seitz v. Mark-O-Lite Sign Contractors, Inc., 510 A. 2d 319 (N.J. App. Div. 1987)(“In construing broad, exculpatory language of this type, however, the courts of this State and the majority of jurisdictions invoke the rule of ejusdem generis. Under this principle, the catch-all language of the force majeure clause relied upon by defendant is not to be construed to its widest extent; rather, such language is to be narrowly interpreted as contemplating only events or things of the same general nature or class as those specifically enumerated.”).
When all the litigation is said and done, though, a judge or jury will have to figure out if the event in question was indeed an “Act of God.” That’s where Justice Musmanno comes in; like my friend the doctor, Justice Musmanno thought that “Act of God” was meaningless. As he wrote for the Pennsylvania Supreme Court in 1962, “It may be in order … to suggest that trial judges not place upon juries the awesome and overwhelming duty of deciding whether any particular act was caused by God or by man.” Bowman v. Columbia Telephone Co., 406 Pa. 455 (1962). Bowman continued:
Man in his finite mind cannot pass upon the wisdom of the Infinite. There is something shocking in attributing any tragedy or holocaust to God. The ways of the Deity so surpass the understanding of man that it is not the province of man to pass judgment upon what may be beyond human comprehension. There are many manifestations of nature which science has not yet been able to analyze, much less cope with. … [T]he loose use of the name of the Diety in the realm of the law should not be a matter of our approval. …
Whether the intervening cause of an injury is wind, snow, storm, or sea, the test in tort cases remains the same: Did the defendant do all that a reasonable person could have been expected to do to avoid the happening which is the cause of the plaintiff’s injuries? If he did, he is not liable in damages. If he did not, he is liable.
The coup de grâce for “Acts of God” in Pennsylvania came a few months later, in Goldberg v. R.G. Miller & Sons, 408 Pa. 1 (1962):
Judges should have no difficulty in describing these incidents of cosmic convulsion or fierce agitation of the elements, without referring to them as “acts of God.”
The English language is rich, not poor. In its vast wardrobe there are words with which to clothe every thought, concept and phenomenonal thing so as to make that thing readily identifiable by the jury no matter how lacking in formal or higher education it might be. Thus, we have storms, tempests, tornadoes, cyclones, hurricanes, blizzards, monsoons, typhoons, twisters, siroccos, gales, southwesters, duststorms, snowstorms, sandstorms, whirlwinds, wind eddies, not to mention tidal waves, earthquakes, volcanic eruptions and all the other pyrotechnical spectacles of nature which at times turn the world into a stage of colossal drama, were it not that the resulting human suffering robs the blazing scenes of theatrical perspective.
Not only is there no need, but it is actually confusing, to tell the jury that they must determine whether a given mundane turbulence is an “act of God.” The jury is not chosen to determine what should be rendered unto Caesar and what is to be rendered unto God. The trial judge should instruct the jury that they are to decide whether the alleged blizzard (if a blizzard is blamed for the proved damage), or the cloudburst (if a cloudburst is accused of upsetting the normal state of affairs), or whatever phenomenon in the meteorological armory is accused of doing the damage, — the judge is to direct the jury to decide whether that phenomenon of weather was so unpredictable, so extensive, and so unprecedented in vehemence and destructive fury, that the defendant could not have made preparations to prevent or mitigate the catastrophic effects.
And so, I’m happy to say, my off-the-cuff answer was right, at least under Pennsylvania law. But what about elsewhere?
Examiner.com rounded up (apparently by way of Accuweather & Scientific American) some statistics on Hurricane Sandy:
- the lowest pressure ever recorded for any storm north of North Carolina at 943 millibars;
- The top two storm surges both occurred in New York with The Battery reaching around 9 feet above its normal level and Kings Point reaching a massive 12.5 feet above its normal level;
- Winds of over 90mph in New York, and over 80mph in locations in New Jersey, Rhode Island, Connecticut, and Massachusetts; and,
- Over 20” of snow in Maryland and West Virginia.
The question, under Justice Musmanno’s reasoning, is “whether that phenomenon of weather was so unpredictable, so extensive, and so unprecedented in vehemence and destructive fury, that the defendant could not have made preparations to prevent or mitigate the catastrophic effects.” Low pressure is an indicator of storm strength, and certainly those wind speeds and snowfalls are unusual for those areas, but all are within the range of foreseeability. Unprecedented does not necessarily mean unpredictable.
The flooding, however, might be different, because flooding has a special place in the law (and, I suppose, in those same Abrahamic religions). It has so often been the cause of litigation, and has so often been described as an “act of God,” that a number of courts have drawn a distinction between mere ordinary floods and extraordinary floods, the latter of which can be “Acts of God.” Here’s North Dakota’s rule:
Extraordinary or unprecedented floods are floods which are of such unusual occurrence that they could not have been foreseen by men of ordinary experience and prudence. Ordinary floods are those, the occurrence of which may be reasonably anticipated from the general experience of men residing in the region where such floods happen.
In passing upon what is or what is not an extraordinary flood or whether it should have been anticipated and provided against, the question to be decided is: `Considering the rains of the past, the topographical and climatic conditions of the region and the nature of the drainage basin as to the perviousness of the soil, the presence or absence of trees or herbage which would tend to increase or prevent the rapid running off of the water, would or should a reasonably prudent man have foreseen the danger and provided against it?’
I found a New York case with a similar “extraordinary flood” rule. Resnick Co. v. Kaisha, 39 Misc. 2d 513 (NY City Court 1963)(unexpected extremely high tide, higher than any record tide apart from during a hurricane, and much higher than the weather forecast, was an “act of god.”). Was the flooding in Lower Manhattan “extraordinary?” Given the infrequency, perhaps so, and other courts in the past have held that “the occurrence of a 100-year flood is by definition speculative and unpredictable.” Shain v. Veneman, 376 F. 3d 815 (8th Cir. 2004). Then again, thanks to global warming, the former “100-year flood’ for New York City is now becoming a “3 to 20 year” flood. If, as Governor Cuomo quipped, “We have a 100-year flood every two years now,” then we can’t say they’re “unpredictable” or “extraordinary” any more.
All in all, it seems some insurance coverage lawyers in New York may have their work cut out for them once power is restored and the clean-up is done — and we need to recognize and start responding to a world with more “storms, tempests, tornadoes, cyclones, hurricanes, blizzards, monsoons, typhoons, twisters, siroccos, gales, southwesters, duststorms, snowstorms, sandstorms, whirlwinds, [and] wind eddies.”