By John Hickey
Time is critical in construction. If a project is not completed on time, an owner's lost profits and financing costs can add up quickly. Similarly, a contractor will expend significant amounts in lost opportunities and extended performance costs. Therefore, it is not surprising that construction delay is one of the most litigated issues in construction law.
Typically, to determine who should pay for delay damages involves an analysis of which party was in the best position to control the cause of the delay. Because neither party can control the weather, weather delays call for a different analysis — one that touches on three principal issues.
In addition to defining the scope of work and the method of payment, construction contracts operate as risk-shifting devices. Provisions that govern claims involving weather delay include force majeure (act of God) clauses, other clauses that specifically address "adverse" or "unusually severe" weather, and "no-damage-for-delay" clauses.
Under most construction contracts, delays caused by unusually severe weather are excusable but not compensable — meaning that the contractor is entitled to extra time to perform but not extra money. One of the more common form contracts in the industry, AIA A201-1997, allows contractors extensions of time for "causes beyond the Contractor's control." Adverse weather is specifically addressed in subparagraph 220.127.116.11, which requires that any such claim "be documented by data that conditions were abnormal and could not have been anticipated." "Abnormal" is not defined — contractors are at liberty to decide for themselves what evidence will best demonstrate abnormal weather.
Other contracts take a different approach. The U.S. Army Corps of Engineers has developed a method of evaluating weather that requires an analysis of weather records over a 10-year period.
Because contractors get extra time but not extra money for weather delays, the "no-damages-for-delay" clause usually is of no effect. But if an owner effectively causes a weather delay — such as by preventing timely access to a site and pushing the performance period into the winter — the clause and its exceptions must be evaluated.
A complete discussion of all the provisions influencing claims for weather delays is beyond the scope of this article. The point? Read what your contract says about weather delays (and comply with any notice requirements).
The tricky thing about weather is that although no one can control it, the weather is to some extent predictable.
For a weather delay to be excusable it must have been beyond the parties' contemplation at the time they entered into the contract. Proving that a particular weather event was unexpected is a hefty burden. Plenty of contractors have lost claims for time extensions because the courts found that the contractors should have anticipated at least someadverse weather.
Daily logs are essential — and should clearly describe the severity of the weather and how it affected performance. Additionally, statistics from the National Oceanic and Atmospheric Administration ("NOAA") should be used. NOAA provides detailed data on the weather for multiple locations throughout the state. Especially important is NOAA's assessment of the departure from normal.
Care must be taken when using weather statistics, however, because they can often be made to prove a number of different things. For instance, one contractor lost its claim despite showing that winter precipitation exceeded the 20-year average because the owner's expert showed that the precipitation was actually below normal when compared to that of the previous five years and to the 24-year average.
Impact on Performance
To succeed on a weather-delay claim, a contractor must also establish that its performance was actually impacted by weather. This requires analysis of critical path activities — those driving the completion date. Delay due to noncritical path activities will not suffice.
Construction schedules are crucial. For any claim involving weather delay, the construction schedule and the daily logs should work together to tell a story about the severity of the weather event and its effect on the project completion date.
But for a schedule to be useful, it must be maintained. Construction schedules should be religiously updated to reflect completed work, significant events impacting the critical path, and changes to the sequence of remaining work. Some contractors have lost claims because the courts precluded the use of schedules that had not been updated as work progressed. The onset of a snowstorm is not the time to get around to updating the schedule.
One court's account of weather delays shows the importance of a clear story: "[A]n exceptionally heavy one-day rain could have a serious adverse effect on a construction site highly subject to erosion. However, the same exceptionally heavy rain would cause less delay than a lighter rain continuously falling over a period of several days would cause on activities such as exterior painting." Although such wisdom is assumed in the construction industry, most judges, jurors, arbitrators, and lawyers don't know construction — so you will increase the chances of succeeding on a claim if your documentation is clear.
Weather-related claims will always be driven by the facts of the particular situation, but addressing the issues discussed above will increase the chances of winning time extension.
This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.