Q&A: Is Washout an Act of God?

Q: We’re a motor carrier. We haven’t yet received a claim, but we’re expecting a really big one on a load of electronics we moved (or tried to move) during the recent heavy rains in the Philadelphia.

Our driver was headed eastbound into New Jersey when he ran into a huge storm just beyond the city. I guess the driver could have pulled over until the storm passed, but he kept on going. Pretty soon he passed through an area where the roadway was flooded badly, so much so that some cars were stalled out.

The driver told us he’d never seen this much rain in Philadelphia, and actually the weather reports bear him out; a record 8.28 inches of rain fell at Philadelphia International Airport that day. Anyway, the road had limited access, nowhere for him to pull off or turn around, so he kept going until the road was completely blocked.

Ultimately the truck, too, stalled, but only after the water had risen so high that it was above the floor of the trailer — and it kept rising. Bottom line: The load got soaked, and it looks to be a total loss.

My question is, are we liable? This will be a huge claim, several hundred thousand dollars (and well beyond our insurance coverage). To my thinking, this was an act of God, caused by the record rainfall. But others in my company question this because the driver could have stopped earlier, before he hit the area of the road where he got flooded out. Our insurer hasn’t given an opinion yet, but it seems to be leaning toward the act of God. Can you advise?

 

A: Ugly. This is one of those cases that will depend on the detailed facts as they’re presented to a jury — assuming the case goes to court, as I think it might — and isn’t easy to resolve.

That “act of God” defense, although it excuses the carrier from liability, is in practice a terribly restricted application. The carrier is excused only if the act of God is the “sole” and “exclusive” cause of the damage and is neither foreseeable nor preventable by human agency; Forward v. Pittard, 1 T.R. 27 (1785).

Over the years that I’ve written this column — 42 and counting — I’ve been asked about many such situations. By and large, I’ve held against the carrier, following the same stringent rules as applied by the courts. I’ve been told about sudden hailstorms, floods, blizzards, windstorms, hurricanes and all sorts of natural mishaps, but there’s usually been an alternative, and I’ve said, sometimes regretfully, that I think the carrier is liable nonetheless.

This time, too, there was an alternative: Your driver could have stopped before the load got drowned out. But is that what a reasonable person would have done in the circumstances?

In law, that’s the test of negligence — whether a person “omit(ted) to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or (did) something which a prudent and reasonable man would not do”; Blyth v. Birmingham Waterworks Co., 11 Ex. 781, 784, 156 Eng. Rep. 1647.

Now, you’ll never meet this archetypal “reasonable man” on the street; he’s a legal fiction. But his putative behavior is the standard by which the actions of the fellow you do meet on the street, such as your driver, is gauged by in law. And that’s the measure by which your driver’s actions and decisions will be judged.

So, was your driver’s election to “keep on truckin’ ” in the face of this storm the act of a “prudent and reasonable man?” Or was it foolhardy? And, if he’d stopped at the time the “prudent and reasonable man” might have, would the load have thereby been protected from the rising floodwater?

This is the issue I can’t resolve for you. I don’t know exactly where he was when the big rain hit, what the road was like, whether there was high ground (relatively speaking) where the unit might have rested securely, what the local forecasts were like, what other drivers did, etc. That’s where the detailed evidence, and its presentation in court, will come into play.

I can’t tell you how it’ll play out. You may wind up compromising before you reach court. I’m just warning you that the “act of God” defense will be a difficult — though not impossible — to maintain.

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.

For the full story: Log In, Register for Free or Subscribe