LegalEase  
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  
I
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  
16  
USGlass, Metal & Glazing | October 2017  
www.usglassmag.com  
LconetignuaedlEase  
of Florida mandated that all structures state have even stricter standards. For products should be able to exceed the  
be built to withstand winds of up to instance, Miami-Dade County, the lo- minimum force. Knowledge is power,  
1
11 miles per hour. This legislation cation of Ocean View Condos, imposes and failing to comply with build-  
finally passed following the extensive a 130-mph wind-resistant standard ing codes and municipal construc-  
damage from Hurricane Andrew nine on most structures, and a 156-mph tion ordinances creates undue risk  
years earlier. More specifically, some standard for buildings deemed “crit- for fenestration professionals in the  
high velocity hurricane zones” in the ical infrastructure.” Regardless, your court room.  
Step three  
Product failures are inevitable and  
will never be completely prevented.  
However, there are measures and pro-  
cedures you can use to decrease the  
chances your products fail. A prod-  
uct is only as good as the installation.  
In the glazing industry, the installer  
and manufacturer are intertwined  
forever in a dependent symbiotic  
relationship.  
FULLY  
INTEGRATED  
ESTIMATING  
Knowledge  
Natural disasters are tragedies that  
affect not just those directly in their  
path, but lives of all Americans in one  
way, shape or form. Their effects cause  
the cost of basic goods and services to  
increase and forever affect the lives of  
those within the “cone of uncertainty.”  
I can’t wait to see our hard-working  
professionals design and construct  
our infrastructure to be better than  
it was before. In order to accomplish  
that feat, industry companies need all  
the viable defenses available to prevent  
unnecessary exposure from lawsuits.  
Help me help you by taking the steps  
necessary to preserve the Act of God  
defense. The next time a catastrophe of  
unprecedented proportion strikes one  
of your jobsites, be glad you compe-  
tently managed the project, complied  
with the applicable building codes and  
regulations, and meet all appropriate  
specs. Countless individuals will be  
grateful. n  
Field-tested access control pros that know the biz  
Estimating staff trained to look for hardware compatibility on projects  
Proprietary system that ensures complete quotes on-time, every time  
Service  
Assistance with hardware submittal packages  
Protech quotes broken down by hardware set and # of openings  
Comprehensive customer service before, during and after the project  
Inventory  
Adams Rite and Sargent exit devices are built for high-traffic openings  
Both have the looks and options architects and designers require  
Rixson floor closers are fully-concealed for optimum aesthetics  
AHS keeps them all in stock – ready to ship the same day.  
Featured Product  
Easy Exits. Perfect Closure.  
Exit Devices and Closers from ASSA ABLOY  
Charles A. “Chip”  
Gentry is a founding  
member of Call &  
Gentry Law Group in  
Jefferson City, Mo.  
He can be reached at  
chip@callgentry.com.  
For more information call us at 855.847.5691  
Got a large project? Send quote requests to:  
estimating@accesshardware.com www.accesshardware.com  
18  
USGlass, Metal & Glazing | October 2017  
www.usglassmag.com  

USGlass
© 2017 Copyright Key Communications Inc. All rights reserved. 
No reproduction of any type without expressed written permission.