This past weekend, an ice storm coated parts of Texas, Oklahoma, Kansas, and Missouri with up to an inch of ice. As a result hundreds of thousands of people lost power, there were massive disruptions, and most tragically, 6 people are known to have lost their lives in storm-related traffic accidents. There is no word about how many people were injured, but generally the number of injured is a good deal higher than the number of people killed.
This reminded us of the last major ice storm to hit the region. As a truck and car accident law firm, several people, involved in different accidents, called us up for help handling their cases. Accidents that occur during most inclement weather are fairly straight-forward. Every driver has a duty to drive no faster than conditions permit. If this means going 15, 10, or even 5 miles per hour and keeping ample following distance, like one would presumably do in a roadway covered with ice, that is what is expected of us.
While commonly referred to as driving too fast for conditions, in Texas law the offense is known as failure to maintain speed. The actual section of the law is found in the Texas Transportation Code, Section 545.351. It reads:
MAXIMUM SPEED REQUIREMENT.
- (a) An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing.
- (b) An operator:
- (1) may not drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for actual and potential hazards then existing; and
- (2) shall control the speed of the vehicle as necessary to avoid colliding with another person or vehicle that is on or entering the highway in compliance with law and the duty of each person to use due care.
- (c) An operator shall, consistent with Subsections (a) and (b), drive at an appropriate reduced speed if:
- (1) the operator is approaching and crossing an intersection or railroad grade crossing;
- (2) the operator is approaching and going around a curve;
- (3) the operator is approaching a hill crest;
- (4) the operator is traveling on a narrow or winding roadway; and
- (5) a special hazard exists with regard to traffic, including pedestrians, or weather or highway conditions.
To boil all of that down, when a driver fails to properly account for the road conditions in order to avoid hitting other vehicles, they are liable for any injuries or damages that their actions cause. No one can escape liability by arguing that conditions were wet, slippery, and didn't permit enough time to stop. Everyone owes a duty to other motorists to factor road conditions into their driving.
For this reason, crashes that occur during winter weather storms should be as straight-forward as car or commercial truck accident cases can be. While lawyers have a reputation for unnecessarily complicating what should be simple matters, in our experience they have nothing on insurance adjusters.
Apparently, some clever insurance adjusters decided that icy road conditions weren't cause for drivers to moderate their speeds and increase following distances, but an Act of God. For legal purposes, an Act of God is any event that is so unlikely, so impossible to foresee, that there is no way we could hold someone accountable for damages that result.
For drivers who have been injured in these kinds of accidents, it makes getting fair compensation much more complex when an insurance company claims that the accident was an Act of God.
Does the Act of God Defense Apply to Ice Storms?
The law doesn't punish people for things that they can't reasonably anticipate. For instance, if an 18-wheeler is driving down the road and a tornado comes out of the blue, launches the truck into other vehicles, and injuries result, it would be wrong to hold the trucker responsible for the accident. There's no way to predict tornadoes and no time to take action to prevent or ameliorate the harm they can do.
Similarly, if you're hosting a party and a meteor crashes into your home and kills some of your guests, neither you, nor by extension your homeowner's policy, would be on the hook, because it's such a rare event that it's completely unpredictable.
For an event to qualify as an Act of God in the eyes of the law, it must satisfy 3 requirements:
- It must be a violence occurring in nature,
- Have nothing to do with human action,
- And not have been reasonably foreseen.
Meteor strikes, tornadoes, earthquakes, plagues, locusts, and every other biblical-level calamity are all properly recognized Acts of God, but does someone who wrecks their vehicle and injures another in an ice storm count?
Let's apply the three elements of the Act of God defense and see. It's beyond dispute that ice storms are acts of violence that occur in nature. I've yet to see man-made ice storm outside of a hockey rink. To suggest that an accident caused by driving on ice has nothing to do with human action strains credulity. However, it is possible that a court somewhere might buy that argument. The really interesting part of portraying ice storms as Acts of God is when we get to foreseeability.
Are ice storms unforeseeable? I suppose if there were a sudden and unpredictable drop in temperature, or an ice fog that comes out of nowhere like they have in some places, then perhaps. However, as it relates to the 2017 Plains Ice Storm, saying that it wasn't foreseeable is a non-starter. We know that for the areas affected by this ice storm, there was an Ice Storm Warning issued by the National Weather Service. If you're not familiar with what an Ice Storm Warning is, here are the particulars:
Ice Storm Warning - An ice storm event is expected to meet or exceed local ice storm warning criteria in the next 12 to 36 hours. Criteria for ice is 1/2 inch or more over at least 50 percent of the zone or encompassing most of the population.
At a minimum, once this warning is issued, there will be 12 hours before the onset of the storm. So the insurers would be arguing that accident resulted from an unforeseeable Act of God that everyone had between half a day's and a day and a half's warning that it was on the way.
With 12 hours notice, many of the people in the affected area could have driven all the way to the Gulf of Mexico. That's why this argument doesn't hold up. Anyone who chose to drive through the ice storm knew that the weather was bad and that extra caution was necessary. I've lived through numerous ice storms and my first hint that driving was going to be a tricky affair wasn't when I got behind the wheel, but the numerous times I almost had my feet fly out from under me walking to the car.
How Insurance Companies Manipulate the Act of God Defense after Ice Storms
The reason that insurance companies wrongly insist that driving too fast for conditions is actually an Act of God is that it works. Before I started studying the law, I certainly wouldn't be in a position to argue with an insurance company that they're not interpreting what the law says about Acts of God correctly. Most people who aren't familiar with personal injury law are in the same position I used to be in.
One reason that insurance companies can play this game is because they're are allowed to say darn near whatever they want to someone making a claim. What most people don't realize is that the burden is on the victim to prove that they are owed money. After any accident, insurance companies step in on behalf of the defendant. This means that on behalf of the defendant, they don't have to prove anything. Instead they're free to deny and dispute whatever they please.
For most insurers, the goal isn't to deny compensation altogether, but to make things so difficult that they get victims to doubt themselves, question what they're owed, and get the victim to forego what they're legally entitled to by accepting whatever amount the insurance company deems appropriate. After major ice storms, this can save insurance companies hundreds of thousands of dollars. Unfortunately, it is the victims who have wrongfully been denied compensation who end up paying for those savings.
As we've mentioned numerous times, there is nothing in the law that establishes an insurance claims process. The process is an invention of the insurance industry, for their own benefit. It's is intentionally opaque and a way to get claimants to give information that helps prepare the insurance company in the event of a trial. Little wonder that part of this system can be arguing that an accident caused by a driver failing to maintain speed, morphs into an Act of God.
In the end the only thing that forces insurance companies to cut out games, like invoking an inappropriate defense, is the credible threat that a victim can take the insurer to court and win. The ease with which an experienced car accident attorney can swat away the Act of God defense in these cases means that it is rarely raised at trial. When you make one argument outside the courtroom and another inside, your original argument isn't a legitimate point of view, it's a negotiating ploy.