Natural Disaster Liability and Defenses
Harvey, Irma and the “Act of God” Defense
C h a r l e s A . “ C h i p ” G e n t r y
nitial property damage calculations company under the outlined circum- can be accomplished if you and your
estimate the economic harm in- stances for the possible damage in- company followed three steps.
ﬂicted by Hurricane Harvey in Texas ﬂicted to Ocean View Condos provided
and Hurricane Irma in Florida will ex- the damage was (1) caused by a truly step one
ceed $200 billion,and that ﬁgure is likely unprecedented event,and (2) the doors
Project management is key when
to climb. Fortunately, it appears that and windows were not negligently de- attempting to employ the Act of God
more structures than originally antici- signed, manufactured or installed. defense. Staying on top of your install-
pated withstood the initial storm surge Most disputes over the defense stem ers and technicians and ensuring they
and later ﬂooding. Hopefully, most sin- from the last element. In the case of follow internal protocol is an absolute
gle-family homes,condo complexes and Ocean View Condos, it’s whether the must.Keep meticulous records and de-
apartment buildings can be repaired design, manufacture or installation velop routines that you and your team
rather than needing to be replaced. of the glazing systems was performed instinctively follow on each and every
Storms such as Harvey and Irma,as well negligently. The challenge is the Act project. A chain is only as good as its
as other major natural disasters, bring of God defense is available and via- weakest link, and, as project manager,
substantial risks into play for the glass ble far less than you might otherwise your job is to keep the chain intact and
and fenestration industries. Let’s con- think. The key analysis is whether the strengthen it at every opportunity. The
sider a condo complex (“Ocean View weather event was foreseeable.
point is this: if you and your company
Condos”) in the Miami area,where your Florida sits in a prime location to cut corners, it is a virtual certainty that
company manufactured,sold and/or in- take the brunt force of hurricanes, the Act of God defense will be unavail-
stalled the glazing products. It remains and the state has been struck before. able to you.
standing,and may or not have sustained However, Irma has been afﬁrmatively
signiﬁcant interior water damage in the labeled as “unprecedented in nature,” step two
majority of its units as a result of failed and meteorologists and oceanog-
Use common sense and become
doors and windows.
raphers have declared it the largest as educated as possible before break-
tropical storm on record. In addition, ing ground on any project. Obviously,
Houston has ﬂooded before, but never tsunami regulations are more likely
Design to installation
You may be asking, “Am I exposed to the extent and magnitude witnessed to apply in Hawaii than in Missouri.
to liability for damage inﬂicted by the over the recent weeks. Tens of thou- California has more extensive earth-
storms? Doesn’t an ‘Act of God’ get my sands have been displaced, and Harvey quake standards than New Hampshire,
company off of the hook?” Insurance set records for the amount of rainfall and your upcoming Alaska roofing
professionals, attorneys and business in a geographic area over a short pe- project is more likely to have snowfall
owners inevitably will land on a seem- riod of time. Admittedly, I don’t have weight-bearing specifications than
ingly obvious theory to deny liability or the credentials to declare either storm would the same project in Arizona.
limit exposure: the“Act of God”defense. “truly unprecedented,” but for pur- Kansas has tornadoes, and it rains a lot
In legal terms, an Act of God is an over- poses of our analysis, both appear to in Seattle.Regardless of circumstances,
whelming, unpreventable event caused meet the ﬁrst prong of the Act of God the location of your project matters. Be
exclusively by forces of nature, includ- test. In order to exercise the defense, educated. Following local regulations
ing all natural phenomena that are ex- fenestration professionals need only may save you hundreds of thousands
ceptional,inevitable and irresistible,the meet the far more controllable burden of dollars in the long run.
effects of which could not be prevented of showing that the design, manufac-
or avoided by the exercise of due care or ture and installation of their products Ocean View Condos project,it would be
foresight. Quite a mouthful, I know.
at Ocean View Condos comply with helpful to know that in 2001 the state
For example, when working on the
Essentially, an Act of God is a legal all applicable speciﬁcations, building
defense available to you and your codes, standards and ordinances. This
continued on page 18
USGlass, Metal & Glazing | October 2017