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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.
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.
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?
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.