October 18th, 2017
Natural Disaster Liability and Defenses
Initial property damage calculations estimate the economic harm inflicted by Hurricane Harvey in Texas and Hurricane Irma in Florida will exceed $200 billion, and that figure is likely to climb. Fortunately, it appears that more structures than originally anticipated withstood the initial storm surge and later flooding. Hopefully, most single-family homes, condo complexes and apartment buildings can be repaired rather than needing to to be replaced.
Storms such as Harvey and Irma, as well as other major natural disasters, bring substantial risks into play for the glass and fenestration industries. Let’s consider a condo complex (“Ocean View Condos”) in the Miami area, where your company manufactured, sold and/or installed the glazing products. It remains standing, and may or not have sustained significant interior water damage in the majority of its units as a result of failed doors and windows.
You may be asking, “Am I exposed to liability for damage inflicted by the storms? Doesn’t an ‘Act of God’ get my company off of the hook?” Insurance professionals, attorneys and business owners inevitably will land on a seemingly obvious theory to deny liability or limit exposure: the “Act of God” defense. In legal terms, an Act of God is an overwhelming, unpreventable event caused exclusively by forces of nature, including all natural phenomena that are exceptional, inevitable and irresistible, the effects of which could not be prevented or avoided by the exercise of due care or foresight. Quite a mouthful, I know.
Design, Manufacture and Installation
Essentially, an Act of God is a legal defense available to you and your company under the outlined circumstances for the possible damage inflicted to Ocean View Condos provided the damage was (1) caused by a truly unprecedented event, and (2) the doors and windows were not negligently designed, manufactured or installed. Most disputes over the defense stem from the last element. In the case of Ocean View Condos, it’s whether the design, manufacture or installation of the glazing systems was performed negligently. The challenge is the Act of God defense is available and viable far less than you might otherwise think. The key analysis is whether the weather event was foreseeable.
Florida sits in a prime location to take the brunt force of hurricanes, and the state has been struck before. However, Irma has been affirmatively labeled as “unprecedented in nature,” and meteorologists and oceanographers have declared it the largest tropical storm on record. In addition, Houston has flooded before, but never to the extent and magnitude witnessed over the recent weeks. Tens of thousands have been displaced, and Harvey set records for the amount of rainfall in a geographic area over a short period of time. Admittedly, I don’t have the credentials to declare either storm “truly unprecedented,” but for purposes of our analysis, both appear to meet the first prong of the Act of God test. In order to exercise the defense, fenestration professionals need only meet the far more controllable burden of showing that the design, manufacture and installation of their products at Ocean View Condos comply with all applicable specifications, buildings codes, standards and ordinances. This can be accomplished if you and your company followed three steps.
Project management is key when attempting to employ the Act of God defense. Staying on top of your installers and technicians and ensuring they follow internal protocol is an absolute must. Keep meticulous records and develop routines that you and your team instinctively follow on each and every project. A chain is only as good as its weakest link, and, as project manager, your job is to keep the chain intact and strengthen it at every opportunity. The point is this: if you and your company cut corners, it is a virtual certainty that the Act of God defense will be unavailable to you.
Use common sense and become as educated as possible before breaking ground on any project. Obviously, tsunami regulations are more likely to apply in Hawaii than in Missouri. California has more extensive earthquake standards than New Hampshire, and your upcoming Alaska roofing project is more likely to have snowfall weight-bearing specifications than would the same project in Arizona. Kansas has tornadoes, and it rains a lot in Seattle. Regardless of circumstances, the location of your project matters. Be educated. Have the proper “boots on the ground.” Following local regulations may save you hundreds of thousands of dollars in the long run.
For example, when working on the Ocean View Condos project, it would be helpful to know that in 2001 the state of Florida mandated that all structures be built to withstand winds of up to 111 miles per hour. This legislation finally passed following the extensive damage from Hurricane Andrew nine years earlier. More specifically, some “high velocity hurricane zones” in the state have even stricter standards. For instance, Miami-Dade County, the location of Ocean View Condos, imposes a 130-mile-per-hour wind-resistant standard on most structures, and a 156-mile-per-hour standard for buildings deemed “critical infrastructure.” Regardless of whether the standard is 111, 130 or 156 miles per hour, your products should be able to exceed the minimum force. Knowledge is power, and failing to comply with building codes and municipal construction ordinances creates undue risk for fenestration professionals in the court room.
Remember, product failures happen. They’re an inevitable part of our industry and will never be completely prevented. However, there are measures and procedures you can use on each and every project to decrease the chances your products fail. A product is only as good as the installation. In the glazing industry, the installer and manufacturer are intertwined forever in a dependent symbiotic relationship.
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.” As I have defended the fenestration industry for more than 20 years, 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 just like yours 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 competently managed the project, complied with the applicable building codes and regulations, and meet all appropriate specs. Countless individuals will be grateful, including your employees, your shareholders and most importantly, your fenestration defense attorney.
Charles A. “Chip” Gentry is a founding member of Call & Gentry Law Group in Jefferson City, Mo. He can be reached at firstname.lastname@example.org.