Legal Triggers for Force Majeure in Cyber Insurance Policies

 

Panel 1: A female professional explains, "Requires unforeseeable events beyond a party’s control," next to a clipboard labeled "Force Majeure." Panel 2: Two suited men debate; one asks, "But is a ransomware attack ‘unforeseeable’?" while the other replies, "It's a legal debate," holding a folder labeled "Cyber Insurance." Panel 3: A man gestures in front of a government building silhouette, saying, "State-sponsored hacking may qualify as an 'act of state'." Panel 4: A woman advises, "Include cloud outages and cyberattacks," while a man with a laptop nods and says, "Use specific language in clauses."

Legal Triggers for Force Majeure in Cyber Insurance Policies

Force majeure used to mean acts of God—hurricanes, earthquakes, wars. The old-school stuff.

But now?

It could be a cloud outage, a ransomware hit, or a DNS hijack by a hostile nation-state.

Cyber risks have redefined how insurance lawyers, policyholders, and regulators think about what’s truly "unforeseeable."

So if your cyber insurance policy relies on some vague force majeure clause buried on page 37... it's time to revisit that.

📌 Table of Contents

1. What Does Force Majeure Really Mean in Law?

Force majeure is a legal doctrine found in contracts that relieves parties from liability or obligations when extraordinary events beyond their control prevent performance.

Think wildfires, civil unrest, government shutdowns, or volcanic eruptions.

But here's the twist: many judges now apply a strict test.

The event must be:

  • Unforeseeable

  • External to the parties

  • Impossible to overcome by reasonable means

Cyber events? The jury is still out—sometimes literally.

2. Can You Still Claim Force Majeure After a Cyberattack?

It depends on how your policy is written and whether the breach was truly outside your control.

If you’re running legacy software, haven’t updated your firewall rules since 2022, or your intern clicked a phishing email... good luck convincing a court it was “unforeseeable.”

But if a zero-day exploit tied to a foreign APT group hits you despite robust prevention—now we’re in force majeure territory.

One in-house counsel told us they had assumed their vendor had this covered—until a core vendor’s outdated Linux instance was used as a foothold for attackers.

“We had no idea their backend was still on CentOS 6,” they admitted. “No clause, no coverage. We had to eat the whole loss.”

3. Is Ransomware Truly Unforeseeable Anymore?

Let’s get real: ransomware is rampant.

2025 already saw major sectors—healthcare, education, logistics—paralyzed by targeted extortion attacks.

So is it still unforeseeable?

Insurers argue no. Courts are split. But plaintiffs who show they had:

  • Current patching and backups

  • Employee awareness training

  • 24/7 monitoring systems

...may still be able to argue “beyond reasonable control.”

And if the attack uses a novel vector or supply chain compromise, the odds improve.

Of course, ask an insurer, and they’ll probably tell you that everything is foreseeable nowadays—especially if you're still using Exchange Server 2016 with public RDP access. (Yes, that happens.)

4. What If It’s a Government-Sponsored Hack?

This is where the “act of state” argument comes in.

If an advanced persistent threat (APT) group backed by a foreign military deploys a worm that takes down your systems, some insurers will immediately cite the “act of war” exclusion clause.

But courts are increasingly skeptical of that defense.

In Merck v. ACE American Insurance, the New Jersey court ruled that the NotPetya attack—even though widely attributed to Russian actors—did not meet the strict standard of “warlike operations.”

This ruling shook the industry.

Suddenly, insurers couldn’t blanket-deny claims for cyberattacks with state fingerprints.

So now, many are revising contracts to define cyberwar more explicitly—or to eliminate ambiguity altogether.

5. Is Your Cloud Provider’s Outage Your Legal Problem?

Your SaaS platform relies on AWS, GCP, or Azure—and then, out of nowhere, one of them goes dark.

Traffic halts. Transactions fail. Uptime SLAs crumble.

You scramble to calm customers, but what do you tell your insurer?

If your force majeure clause doesn't mention “third-party infrastructure” or “critical vendor failures,” you may be on the hook.

Courts will ask: Was this a single point of failure? Could you have mirrored traffic? Was it foreseeable that one cloud zone might collapse?

Unless your legal clause is watertight, “the cloud ate my service” won’t fly anymore.

6. Bulletproof Clauses That Survive in Court

Strong cyber-specific force majeure clauses do three things:

  • Enumerate specific digital threats — ransomware, zero-days, state-sponsored malware, cloud outages

  • Define causality thresholds — “materially hinders” vs “renders performance impossible”

  • Identify scope — primary systems, third-party processors, vendor chains

Here’s an example:

“Events including but not limited to distributed denial-of-service attacks, critical third-party SaaS platform outages, ransomware affecting core production systems, or malware campaigns from state-affiliated actors shall constitute force majeure if they materially hinder performance.”

This clause won’t guarantee success—but it gives you a fighting chance in court.

7. Final Thoughts for Policyholders and Legal Teams

The cyber force majeure debate is evolving rapidly—especially as AI-generated exploits and deepfake phishing redefine what is “expected.”

Insurers are learning. So should you.

If your current contracts or policies still refer to “natural disasters” and “riots,” that’s a red flag in 2025.

Don’t wait for a disaster to learn your language is toothless.

If your clause doesn’t mention ransomware, cloud vendors, or digital sabotage—pour a coffee, call your legal team, and fix it.

🔗 Recommended External Readings

Keywords: cyber insurance force majeure, ransomware contract clause, cloud outage liability, state-sponsored hacking legal, zero-day exclusion policy