Acts of God and Other B.S.

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Flooding victim is getting the royal shaft

The mud hasn't dried around the foundation of what used to be Debra Brake's house.

But already, the media seem to have moved on, leaving some pretty big questions unanswered.

Meanwhile, a widow of limited means is left alone to put her life back together, after her house was pretty much destroyed by a flash flood.

When a lady gets her purse stolen by a street thug, there's a mighty uproar. But when a lady gets the royal shaft from an insurance company, the provincial government and city council, we seem to shrug and carry on.

Yes, the media has covered this incident. That's how I determined the facts, which are as follows.

After some heavy rain, water collected at a trestle in the old railway bed, in the Curling area of the City of Corner Brook. It was not draining properly through the trestle a situation that has occurred before and the railbed became a dam, holding back a massive amount of water.

Not being designed to withstand such forces, the railbed gave way, releasing a torrent of water on the nieghbourhood below, in particular the home of Debra Brake, who is lucky to be alive today. As it is, she lost everything in the house (save for a few pictures on the wall) and quite possibly the house itself.

That's the story, and it's covered well here, by the Western Star. But there's a big question lingering in the aftermath: who is going to pay for Mrs. Brake's house and contents?

The City of Corner Brook is not admitting to any liability, because the railbed is the responsibility of the province. The province is washing its hands of any liability too, though I have not heard a clear explanation why.

And get this the insurance company refuses to cover her damages, because the incident was an "act of God."

Imagine. Invoking the name of "God" to weasel out of helping a widow in distress.

Overall, the media didn't push hard enough on this story. They didn't ask enough questions of the appropriate people. This CBC online story pulls up short, just as the tough questions should start, though it should be added that the Here & Now story was fairly comprehensive. If memory serves, Jerome Kennedy said the province would not be accepting responsibility for the incident. (The correct response would have been, "We are conducting an investigation into this and will act accordingly when the appropriate questions have been answered.")

However, we know where the buck stops in this province. Why wasn't a microphone put in Danny Williams's face, asking him to explain why Mrs. Brake is being treated this way?

The trestle is allegedly the property of the province. It contains a culvert that, if not kept clear, will become blocked. Water will gather, forming a pond with volumes the trestle wasn't designed to withstand. There are houses downstream. Put it all together. Someone screwed up.

(Have a look at this photo gallery from the Western Star, featuring photos by Shannon Lynch. The third image shows clearly the flimsiness of the berm wall, constructed entirely of gravel, and the depth and width of the pond' behind it.)

What galls me most about this is the act of God' phrase. It's a cop-out, plain and simple, generally used by insurance companies to dodge paying a settlement to their policyholders.

Lloyd Duhaime of Duhaime Law operates an excellent online regal reference, which I consult frequently because it is rooted in Canadian law. Duhaime is knowledgeable, opinionated and funny; one of the few lawyers who can make law interesting.

Sure enough, Duhaime has written an entry about the act of God' cop-out. I am posting a few excerpts below, but I urge you too read the full entry here. He says an act of God is: "An event which is caused solely by the effect of nature or natural causes and without any interference by humans whatsoever."

Duhaime then quotes from a 1922 case in the U.S. that is often cited, which says, if an incident, "might have been avoided by human prudence and foresight, it cannot be considered the act of God."

And then there's this, from the same case: "It is a well-understood physical fact that in this climate water in the pipes in an unheated building will freeze and burst the pipes in the winter season. Ordinary prudence and foresight would have led the person in possession of the building to shut off the water and drain the pipes. Had this been done, the extreme and unusual cold would not have caused the damage. Hence the defendant cannot escape liability on the plea that the injury was caused by an act of God."

Let's look at our case. Heavy rain is something we've come to expect in this province. A man-made trestle contains a culvert which, if not kept clear, will collect water and form a dam, with potentially catastrophic results. This is an act of negligence, not an act of God. It looks to me like Mrs. Brake should engage the services of a good lawyer.

What galls me is how easily the insurance company got away with this. What is the name of the company? Shouldn't we know this? Why wasn't a microphone placed in front of their spokesperson, asking what God had to do with this? As a follow to the story, media might call all local insurance companies to ask if they, too, have the act of God' cop-out in their policies. Those who don't assuming they are otherwise competitive might see a sudden increase in business. Others might see cancellations, and deservedly so.

I will give the final word to Mrs. Brake's sister, who left this comment at the CBC online story:

This is Debbie's sister, I'd like to thank you all for your notes of concern. I want to let you all know that we are going to fight this. After paying insurance all these years, and talking with different people about the condition of the brook for 20 years, Debbie shouldn't be left with nothing. Different political agencies are disputing who is responsible for the land for years now. I bet if gold or diamonds were discovered there it wouldn't take too long for some group to come forward and say it's our land!

I'd like to thank the Fire Department of the City of Corner Brook for their rescue efforts, the Canadian Red Cross, and the Salvation Army. It's nice to see that people are there when you need them.

Yes, indeed. There when you need them.

Instead of shamefully dodging liability.

Merry Christmas, Mrs. Brake.

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  • Ross
    July 27, 2010 - 14:53

    She should tell the insurance company she's an atheist and where to send the cheque. Case closed.