I received a question from an engineer who owns a New Jersey lake home hit by Hurricane Sandy. He read one of our posts about boating, storms and legal responsibilities, then wrote and asked for some help.
Here is what occurred: Ten days prior to Hurricane Sandy he and most of the homeowners took the time to secure their docks to keep them from drifting and causing damage to the property of other owners. One owner did not take precautions and when the storm hit his dock drifted causing thousands of dollars of damage. We don’t know why he chose to do nothing, but he apparently could have and not having taken a few simple precautions his dock broke loose during the hurricane, drifted and... well just look at the photograph.
This owner whose dock was damaged filed a claim with the offending owner’s insurance company who denied the claim asserting it was an “Act of God”.
How can this owner present his claim to get by the Act of God defense? While I can't say for sure I can express my initial opinons about what would need to be done to know how to respond to the insurance company. First, I would need to do some serious research before giving a definitive answer, but here are my initial thoughts.
The first question in determining if a duty was breached is to consider what was foreseeable? Everyone has a duty to not damage other owner's property. It's pretty obvious from how his neighbors sprang into action that it was reasonable for everyone to anticipate that without additional anchoring the docks would probably get loose and drift during the storm. The at-fault homeowner failed to act and that failure led to thousands of dollars in damage to this guy’s dock. I don't have a case to cite for you today, but foreseeability is the cornerstone of all tort arguments. I think it’s likely this insurance company will sooner or later have to pay. Everyone knew the storm was coming. Some people acted and their actions kept their docks secure. Let us list what we know about the facts.
- Everyone had the same warning.
- You had enough time to act and did act.
- You tied your docks to a large trees and larger pilings.
- Your neighbor had the time but chose not to act to protect property damage from occurring.
- He failed to properly anchor his dock.
- His dock, insufficiently anchored, broke free.
- Once broken free, it left its perch, causing damage to the property of other owners’ docks.
- But-for his dock smashing repeatedly into your dock, then your dock would have been intact with little or no damage.
Questions of Fact to Develop:
- Can you prove, but for his dock, yours would not have suffered similar damage?
- You probably can if you can show other neighbors who did anchor properly suffered little or no damage.
- How much time and expense was involved with taking the additional precautions?
- How difficult were the additional precautions you took?
- How many other neighbors employed the additional precautions?
- How effective were the additional precautions?
- Why didn’t the neighbor with the free floating dock act?
- Taking photographs of the additional precautionary measures would be helpful.
- Taking photographs of what the other guy had in place might be helpful.
- Taking photographs of what other neighbors did to secure their docks would help.
Opinion: It seems to me the Hurricane had little to do with his failure to act, because most everyone had time to act before the full impact struck the area.
I do like the photographs because they show that even though this was a hurricane, the storm in your area was pretty well contained. I’ve seen some hellish full moon high tide storm waves in Bristol that no one could control.
As I said, I don't have a case to cite, but you do need one discussing what consititues sufficient fact to support an Act of God defense in insurance law. If you want a case then a lawyer local to your community will have to do some research and will likely charge for the service, but that's to be expected. Perhaps you can ask the other guy's insurance company for the name of any case that supports this as a defense. You may also ask your own insurance adjuster for the same. If they provide a case cite send it to me and I'll read the case and add to this blog post. That might help to put the issue in focus more.
A lawyer would need to research the case law discussing the legal elements to defend by an Act of God under an insurance policy when everyone has prior warning to such an extent that precautionary actions can be taken. After all how can a storm that everyone is warned about amount to an excuse for not acting under the defense of an Act of God. As a lawyer I would want to consider if the law requires those who can take simple precautions that would prevent property damage to act before the storm strikes. The description of those precautions taken is not extraordinary or expensive. This was a simple fix that could be completed in the matter of less than one hour. The object of all legal principles is to protect people and property.
Hope this helps and again, thanks for the photographs.
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