Mitigation Defense Based on Force Majeure Clause For Jury to Decide, Not Court
A subcontractor was operating a crane when it rolled over and damaged two conveyor belts being used to transport coal at the Centralia energy plant. This in turn caused a plant shutdown, which caused the customer to purchase energy on the open market to fulfill its requirements to third parties during the shutdown. This case involved the customer's suit against the subcontractor to recover the extra energy costs.
The trial court had entered summary judgment in favor of the subcontractor, based on its argument that the customer failed to mitigate its damages. The subcontractor's mitigation theory was that the customer need not have purchased energy on the open market to fill current requirements to third parties because its obligations to those third parties were discharged by a Force Majeure Clause that allowed the customer to suspend its performance if its inability to perform was due to factors outside its control.
Reversing on appeal, Division 2 held that the effect of the Force Majeure Clause on the customer's duty to mitigate was a question of fact for the jury - specifically, whether the customer acted "reasonably" by not invoking the Force Majeure Clause to suspend energy deliveries to third parties.