Q&A: Is Illness an Act of God?

Q: We’re a manufacturer who lost a load recently in a truck wreck. We filed a claim for the approximately $50,000 value of the shipment against the carrier, not expecting a problem.

The carrier turned the claim over to its cargo insurer, and the insurer has come back to us with a declination for a reason I’ve never heard of before. Maybe you can help.

The insurer says the wreck happened when the driver had a “diabetic seizure,” which I’ve since learned is also known as insulin shock — his blood sugar level got so low that he lost consciousness. The insurer says that’s legally an “act of God,” and therefore it’s not liable.

That just doesn’t seem right. I thought an “act of God” was a really bad storm, a flood, an earthquake, something like that, not just somebody getting sick. In addition, from what I’ve read, there are advance warnings of low blood sugar, which the driver must have ignored; and isn’t his ignoring them negligence?

In your experience, are the carrier and its insurer liable?

 

A: It’s said there’s nothing new under the sun. That unfortunately doesn’t apply to the situation you describe, which diligent research tells me is legally unprecedented. (Anyone out there know differently? Please get in touch.)

Oh, there are quite a few cases involving unexpected illness by a vehicle operator, in most of which the “act of God” exception has been upheld. The thing is, though, every such case I located deals with other forms of liability attaching as a result of operator negligence. That doesn’t apply here.

I actually witnessed one such case in small claims court, where a driver was being sued because he went into insulin shock and his vehicle crashed into an expensive roadside sign, wiping it out. The plaintiff invoked the same argument you did, that the driver should have known his sugar was low before it disabled him.

Now, I was once married to a lovely lady who happened to have Type 1 diabetes (the kind where your pancreas makes no insulin at all and you’re dependent on injecting it). She was diligent about checking her blood sugar level, watching her diet, all the stuff the doctors want you to do, and still a couple of times in the 10 years we were together insulin shock got her. The advance symptoms are subtle, part of their effect is to compromise judgment, and it can indeed sneak up on you.

Anyhow, in the case I witnessed, the judge — properly in my opinion — blew off the plaintiff’s argument and found the defendant driver not to have been negligent. And so it’s been in the other reported cases I’ve found on this issue.

The difference is that carrier liability for cargo isn’t founded on negligence. Yes, the carrier must prove it wasn’t negligent, but that’s not the end of it; even a non-negligent carrier will be held liable for loss of or damage to goods in its custody unless the loss or damage resulted from one of five very narrowly construed exceptional causes (of which act of God is one). That’s unique to transportation; nowhere else is this “absolute” liability to be found.

And in this context I’ve found not a single decision, one way or the other, adjudging whether unexpected illness qualifies as an “act of God” for the purposes of excluding carrier liability.

So what this would be, if you chose to pursue it, is what’s called in legal parlance a “case of first impression” — beloved of law students who dream of making a splash by setting new law, but cordially detested by practitioners of the trade trying to make a living at it. Your first problem would be even finding a lawyer willing to take this one on.

But it gets worse. Cases of first impression are a big deal to all concerned because they set the bar for future, similar cases. So even if you won at trial, you could expect an appeal, and maybe even further appeals all the way up to the Supreme Court. And by that time, your $50,000 and a bunch more would be long gone in legal fees.

I can tell you anecdotally that in most situations anywhere like yours that I’ve privately encountered, carriers have chosen to settle. Your claim here is against the carrier, not its insurer. I’d suggest you press it hard for at least some payment, and chalk the rest up to bad luck.

Consultant, author and educator Colin Barrett is president of Barrett Transportation Consultants. Send your questions to him at 5201 Whippoorwill Lane, Johns Island, S.C. 29455; phone, 843-559-1277; e-mail BarrettTrn@aol.com. Contact him to order the most recent 351-page compiled edition of past Q&A columns, published in 2010.

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