As the pandemic matures, watch for a wave of lawsuits. From business deals that didn’t go through to hospitals that didn’t accommodate scheduled surgeries to every other institution, business or entity whose failure to live up to their side of a contract resulted in injury – perceived or otherwise – to someone else is going to get sued. It’s already happening. At the legal level, at issue is the question of whether or not COVID19 constitutes a force majeure event. In layman’s terms: is the pandemic an act of God?
According to my lawyer friends, a force majeure event refers to an event outside the reasonable control of a party and prevents the performance of obligations covered in the contract. Lots of contracts include force majeure clauses – but apparently if a contract does not explicitly include such a clause, none is assumed. So, the specific terms and context of each individual contract will have to be considered. That’s a lot of work for a lot of lawyers for a long time.
Again, my lawyer friends tell me that the “test” for force majeure usually requires satisfying three criteria:
- the event must be beyond the reasonable control of the affected party;
- two categories here: political force majeure and natural force majeure
- the affected party’s ability to perform its obligations under the contract must have been prevented, impeded or hindered by the event; and
- the affected party must have taken all reasonable steps to seek to avoid or mitigate the event or its consequences.
The question of a natural force majeure is where we come across the catch-all provision of an “Act of God.”
The first time I heard this raised in relationship to the pandemic is when Oklahoma called on President Trump to declare COVID19 and Act of God to help the oil industry.
From the article:
In a letter sent to President Trump on Saturday, Governor Stitt asked the Administration to declare the pandemic an ‘act of God’, which, as per a U.S. code on oil pollution liability and compensation is “an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character the effects of which could not have been prevented or avoided by the exercise of due care or foresight.”
The reference to the U.S. code intrigued me. Did you know there are references to Acts of God in several U.S. codes and tort laws? In short, they seem to be defined as that which is not only outside of human control but beyond the human’s ability to anticipate. So, not only stuff we couldn’t prevent but things we literally couldn’t see coming. And they’re categorized as Acts of God. And they’re all catastrophically bad. That’s interesting.
Are you surprised by that language? I wonder if the Freedom from Religion Foundation has force majeure clauses in their contracts or insurance policies. I wonder how they respond to the Acts of God language and provisions in the U.S. Code. I didn’t see any FFRF inquiries nor suits files in response to the Oklahoma governor’s request for the President of the United to formally blame the whole thing on God to protect the economic interests of U.S. oil companies, but then, there’s still time.
But pause that thought for a moment and ask yourself: what does it mean to BLAME God for catastrophically bad events like a global pandemic but NOT thank God nor give Him positive public credit for every good, blessed day and circumstance?
And what does it say about the worldview of those who wrote this into American law and insurance policies?
Luke 17:11-19 tells the story of Jesus healing ten individuals suffering with a horrible disease called leprosy. The story fits the “acts of God” conversation because leprosy was considered a curse by God. So, God was blamed but as we’ll see, when cured, God was not thanked.
11 On the way to Jerusalem he (Jesus) was passing along between Samaria and Galilee. 12 And as he entered a village, he was met by ten lepers, who stood at a distance 13 and lifted up their voices, saying, “Jesus, Master, have mercy on us.” 14 When he saw them he said to them, “Go and show yourselves to the priests.” And as they went they were cleansed. 15 Then one of them, when he saw that he was healed, turned back, praising God with a loud voice; 16 and he fell on his face at Jesus’ feet, giving him thanks. Now he was a Samaritan. 17 Then Jesus answered, “Were not ten cleansed? Where are the nine? 18 Was no one found to return and give praise to God except this foreigner?” 19 And he said to him, “Rise and go your way; your faith has made you well.”
Notable is Jesus’s mercy on those who ask for help. He healed them all. But only one in ten returned to give God the glory and offer thanksgiving. The tendency to blame God for that which we experience as curse but failing to credit God for that which we experience as blessing is a gross misrepresentation and reduction of the mighty Acts of God.
