In the above episode of On Subrogation: Act of God Defense, Rathbone Group attorney Jason Sullivan discusses the Act of God Defense. Most often seen in subrogation claims for property damage, this legal mechanism protects potential litigants from being held liable for damages that are caused by a force of nature outside of any person’s control.
Most courts also add that there does not need to be a legal precedent to put forward an act of god defense. In many cases of property damage, especially with storms, a tortfeasor will try to claim they are not liable because they cannot control a storm. But, also in many cases, it is not that simple.
Sullivan quickly reviews what subrogation counsel needs to do to prove negligence in any given case. The elements of negligence must include:
Functionally, an “act of god” voids a breach of duty, meaning a court will likely not hold the at-fault party liable. So, once a party invokes this defense, the court first looks at whether the party did, in fact, have control over the situation. And when you mix Mother Nature with man, things aren’t always so straightforward.
Jason poses three hypothetical subrogation disputes over property damage to illustrate:
Hypothetical #1: Fallen Tree Property Damage
Your neighbor has a tree near your property line that is structurally compromised, and your neighbor is well aware. A storm with high winds occurs, and the dead tree falls on your home, causing damage to your house. Was it an act of god?
- Duty: Your neighbor has a duty to not cause damages to your adjacent property.
- Breach: Your neighbor let a dying tree go too long and become unstable.
- Cause: High winds caused the tree to fall.
- Damage: The house was damaged.
In this case, the act of god defense would not be viable. Your neighbor breached their duty; they should have taken care of the defective tree prior to the storm. Therefore, they are liable for the losses caused by the tree fall.
Hypothetical #2: Lightning Strike Property Damage
Your neighbor has a tree near your property line, which, by all accounts, isn’t defective in any way. A storm rolls through and the tree is struck by lightning. The tree falls onto your house, causing damage. Was it an act of god?
- Duty: Your neighbor has a duty not to damage your property.
- Breach: N/A
- Cause: Lightning caused the tree to fall.
- Damage: The tree damaged the house.
Breach of duty is null in this situation, because no one can predict or prevent a lightning strike. Your neighbor had no way of controlling the situation, so they cannot be held liable.
Fallen tree property damage is a common scenario in the world of insurance subrogation, both acts of god and tortious behavior of man. You can watch Kim discuss the specifics of subrogating fallen tree damage in another episode of On Subrogation: Fallen Tree Subrogation Claims.
Hypothetical #3: A Perfect Storm of Negligence
There is active construction on the roof of a high building. There are building supplies, heavy equipment, and tools like wheelbarrows and shovels. The local weather predicts storms for the following day, which is an off-day for the construction workers.
Despite knowing they will not be working the next day, the workers leave everything out at the end of the day and fail to secure all materials and equipment. The next day it storms and several heavy things are blown off the roof, causing damage to adjacent properties. Was it an act of god?
- Duty: The construction workers have a duty to ensure everything is secured at the end of each work day.
- Breach: They failed to follow those procedures.
- Cause: Unsecured materials fell from the work site.
- Damage: Adjacent properties were damaged.
The construction workers acted negligently by not following proper procedure and securing the items that caused damage to other property owners. Act of god does not apply, and they can be held liable for the losses incurred.
Jason notes that this type of scenario also applies to things like commercial tents, where a store sets up street-side tents for a promotion or event. High winds blow the tent over and it damages someone’s car. Was it an act of god? The first question to ask is whether the tents were properly secured or not. The second is whether they knew there would be high winds that day.
Interested in learning more about how to best subrogate difficult disputes? Check out Rathbone Group’s YouTube channel and podcast library for On Subrogation, an informational resource for subrogation attorneys, specialist and other insurance professionals. Can’t find what you’re looking for? Ask us to feature your subrogation topic on a future episode by emailing us at [email protected].