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Trial Tactics
Many courts were faced with the analysis of whether a force majeure clause involving COVID-initiated contract issues fit within the “governmental” actions such as laws, regulations or restrictions. Courts attempting to draw on pre-COVID analysis have also examined whether mere economic hardship is sufficient to trigger application of the clause.30 The issue of “proximate cause” also weighs heavily on the analysis of many courts, whether or not it is explicitly framed in such a manner.
In attempting to disseminate trends in litigation involving application of a force majeure clause moving forward, it appears that courts are trending away from permitting reliance on it to excuse performance, as related to the pandemic.31 This is especially true in instances where courts examined situations where governmental restrictions had been lifted in whole or in part.32 As a result, litigants should be aware and consider the potential scope of the relief that could be applicable, which differs from many pre-COVID force majeure considerations.
By: Jeffrey D. Van Volkenburg is an FDCC Defense Counsel member and a founding member of Varner & Van Volkenburg, PLLC, in Clarksburg, West Virginia. Contact him at: jdvanvolkenburg@vv-wvlaw.com.
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FDCC ANNUAL FIVES 2023