In this industry, we get so used to certain issues that we sometimes don't notice when they gradually drift away from where they started. Then, we end up changing the risk allocation between owner and contractor or contractor and subcontractor that we were used to. The way weather is treated in contracts is one of those issues.
A basic proposition of law is that a party who signs a contract agreeing to be completed by a certain date will be liable for the damages of the other party if the project isn't done on time. In other words, there is no “automatic” right to an extension of time just because of weather.
Over the years since this harsh principal was first announced by local judges in the English court system, “exceptions” crept in. One major exception is when the contract becomes “impossible” to perform due to some cataclysmic event outside of the control of either party, such as the outbreak of war or a terrorist attack. This kind of event has come to be known as a “force majeure.” Although embargos, strikes etc. do occur and cause interruption of construction projects, by far the most common force majeure event to plague contractors is weather.
This is where it gets more complicated. The traditional force majeure concept, and the law that has developed to deal with it, involves those huge weather events such as a Level 4 hurricane or major earthquake or tornado — something so grave that a project might be abandoned altogether, or that at very least pushes all the work back. Yet the typical situation confronted every day on job sites is a weather-related impact of a much more subtle nature.
Weather impacts can't be dealt with proactively. If steel is back-ordered for eight weeks, the impact of that delay can be addressed at one time. Given our inability to predict weather, however, weather impacts are felt on a day-by-day basis, which makes it much more difficult to develop a plan to deal with them and forces the parties to react rather than plan ahead.
There have been countless situations in which parties have said, after-the-fact, “If we'd known it was going to keep raining that long, we would have done (whatever).” This makes it difficult to know when to invoke a force majeure clause.
Weather impacts don't always entitle a contractor to any relief. Virtually all contracts entitle a contractor to additional time if they are delayed by circumstances that they could not control and could not have anticipated. Particularly bad weather certainly meets the first test, but it may not meet the second.
A contractor who does not anticipate and include in its schedule any time for very cold weather in Maine or very wet weather in Florida will not likely meet the second. The weather conditions have to be not just severe but also “unusually” severe. Lots and lots of legal fees get spent every year proving and disproving what “normal” weather is.
Weather impacts are documented differently. There is generally no need to come up with special procedures for how to prove a force majeure: the newspapers, television and Web collect the data to show what happened.
For a contractor to justify additional time for weather, someone has to keep a lot of records. And for an owner to defend against weather claims, someone else has to keep their own separate records of the same events.
How do you reach the right result?
Be careful to make sure that the standard for “normal” weather is the right one for your project. Many contracts provide either that a five- or 10-year average of the weather as recorded at a National Oceanic and Atmospheric Administration station (frequently the local airport) will be the norm against which abnormal weather is measured. Some contracts (intending to clarify and thus avoid later problems) actually contain specific numbers of days in each month that the contractor has to agree are included in its schedule for weather.
This may or may not accurately reflect conditions at your site. The closer to your site the conditions are against which you will be judged, the better.
Define what conditions qualify for relief. The poor site conditions caused by rain often linger for many subsequent days. Similarly, just because the temperature is above freezing one day doesn't mean that the ground has thawed enough to dig. Contract language that only allows for relief on days when NOAA data shows actual adverse weather produce unfair results.
Discuss impact-reducing steps with your customers. If customers are approached early and know that they will be delayed in moving into or using their new facility due to weather, they may be receptive to remedial efforts such as soil stabilization or temporary heat. Since contractors seldom get paid for staying on a job longer, it is in their interests as well to get the time made up.
Susan McGreevy is a partner at Stinson, Morrision, Hecker LLP, Kansas City, Mo., 816/842-4800, e-mail to [email protected].