Seitz v. Mark-O-Lite Sign Contractors - 210 N.J. Super. 646, 510 A.2d 319 (Super. Ct. 1986)

Rule:

In construing broad, exculpatory language of force majeure clauses, New Jersey courts invoke the rule of ejusdem generis. Under this principle, the catch-all language of a force majeure clause is not construed to its widest extent; rather, such language is narrowly interpreted as contemplating only events or things of the same general nature or class as those specifically enumerated.

Facts:

Plaintiff general contractor, George Seitz, and defendant, Mark-O-Lite Sign Contractors, Inc. executed, a contract for Mark-O-Lite to perform work on the marquee of a theater that Seitz was restoring. The contract contained a force majeure clause that excused any failure of performance caused by strikes, fires, floods, earthquakes, or other acts of God. After the contract was executed, Mark-O-Lite’s expert sheet metal worker, a diabetic, was hospitalized for the amputation of his foot. Mark-O-Lite informed Seitz it could not do the work and returned Seitz’ deposit. Seitz obtained another firm to do the work and brought a breach of contract action against Mark-O-Lite that sought damages in the amount of the difference between Mark-O-Lite’s bid and the amount charged by the replacement firm. The matter was submitted for the court's determination.

Issue:

Was the illness of Mark-O-Lite’s expert sheet metal worker an event that excused performance within the meaning of the contract's force majeure clause?

Answer:

No

Conclusion:

The court entered judgment in favor of Seitz. The court held that the illness of Mark-O-Lite’s employee was not an event within the meaning of the force majeure clause, and that defendant could not prevail on a defense of impossibility of performance because the contract did not require performance by a specific individual.