A client called me recently to ask whether the geographical limitation in a noncompete agreement is typically measured by driving distance or “as the crow flies” when not clearly specified in the agreement. The question is pertinent because measuring “as the crow flies” will typically extend the geographic reach of the noncompete.
What I found in my initial search spanned the spectrum, and here is how I made sense of it all.
If the contract references a “radius,” the question is likely easily answered. Under Pennsylvania law (and elsewhere), the word “radius” in a noncompete appears generally to mean a “straight line” (i.e., as the crow flies) rather than “driving distance.” See Johnson v. McIntyre, 309 Pa. 191 (1932) (“[t]he court has no power to substitute for “a radius of fifteen miles” the words “fifteen miles by the nearest traveled public way or road”); see also, Gearhart v. Nationwide Mut. Ins. Co., 2015 Ohio 2930 (Ohio App., 2015) (“[t]he use of the word ‘radius’ provides further support to the notion that a straight line method of calculation should be used”). This is because “radius” is a pretty clear term meaning “in a straight line.”
Absent the specific term “radius,” however, the answer becomes less clear.
On the one hand, there are plenty of cases, in Pennsylvania and elsewhere, that suggest that all unspecified distances should be measured as the crow flies. See, e.g, Somach’s License, 32 D.&C. 603 (Pa. D.&C. Ct., 1938) (“[i]t seems fundamental to us that in measuring distances, there can be only one method employed — and that is straight linear measure.”) But mostly such cases arise in construing statutes, where it makes good policy sense to extend the reach of, say, a drug-free school zone as far as possible. Some cases involving restrictive covenants have also taken the same approach though. See, e.g., Jak Prods., Inc. v. Bayer, 94 F.Supp.3d 777 (S.D. W.Va., 2015) (applying straight-line distance; “I recognize the argument about the driving distance and I reject it”).
On the other hand, there is another line of authority – one arising specifically in the noncompete context – which reasons that driving distance should be used because noncompetes are disfavored, and any ambiguity in them should be resolved against their drafter. Rite-Aid of South Carolina, Inc. v. Cantrell, 336 S.E.2d 726, 287 S.C. 119 (S.C. App., 1985) (“ambiguities or conflicts in a written contract must be resolved against the party who prepared the contract. In this case the contract was drawn by Rite-Aid’s attorney and could have easily spelled out the method of measuring the three miles; the contract failed to do so”). Actually, I think this may well be the better argument in noncompete cases where the contractual language provides no clear guidance.
As always, the specific language in a particular contract will be central, but the foregoing principles may also provide a useful lens through which to analyze that contractual language.