Individuals often resort to familiar turns of phrase when asked to describe the events of 2020, and particularly the COVID-19 pandemic. Some call it a catastrophe or a nightmare. Others opt for something more idiomatic—a dumpster fire.[1] Over the last year, civil litigants asked several courts to consider the fitness of one particular description: is COVID-19 a “natural disaster”? In at least three cases, the answer was a vigorous “yes.”
Nine months ago, we published an introduction to the concept of force majeure clauses offering guidance about how courts may apply such provisions to COVID-19-related disputes. (See COVID-19: A Force Majeure Event?). At that time, however, few (if any) courts had actually interpreted force majeure clauses under these circumstances. This post updates on our original guidance.
One of the first courts to wrestle with this question was the Pennsylvania Supreme Court in Friends of Danny DeVito v. Wolf, 227 A.3d 872, 876 (Pa. 2020), cert. denied, 141 S. Ct. 239 (2020). In April 2020, the DeVito petitioners challenged the Pennsylvania governor’s executive order closing all non-life-sustaining businesses to control the virus’ spread. The petitioners’ challenge was a blunderbuss. Among other arguments, they contended that the pandemic was not a “natural disaster” under the state’s Emergency Code because it was not specifically listed as such and was different in “type or kind” from those disasters found in the statute.[2] Their argument relied on the ejusdem generis maxim—a principle applied to interpret general words following specific words as embracing only those objects similar in nature to those specifically enumerated. Put differently: a word’s meaning is determined by the company it keeps.
The Pennsylvania Supreme Court was unpersuaded. “The COVID-19 pandemic is, by all definitions, a natural disaster,” the Court wrote, “and a catastrophe of massive proportions.” The only commonality among the specific disasters listed in the Emergency Code was that they all involved “substantial damage to property, hardship, suffering or possible loss of life.” COVID-19 was accordingly of the “same general nature or class as those specifically enumerated.” The Pennsylvania Supreme Court re-affirmed this conclusion seven months later, albeit in the disparate context of election-related litigation. See Pennsylvania Democratic Party v. Boockvar, 238 A.3d 345, 370 (Pa. 2020) (“We have no hesitation in concluding that the ongoing COVID-19...
