Planning for possible weather delays

Let's assume your scope of work is on the critical path. And let's also assume the weather has been so uncooperative that now your work is causing critical path delays. This can be potentially big money if liquidated damages are assessed. So why is this your problem? Don't you get an extension of time for bad weather? Well, not necessarily. That's because there is no automatic right to an extension of time just because the weather prevented you from timely completing your work.

This might not sound fair, but it stems from a basic legal principal. A party who signs a contract agreeing to complete his work by a certain date will be liable for damages to the other party if the work isn’t done on time as promised. Fortunately, there are some exceptions to this general principal. If, for example, the contract becomes impossible to perform due to some catastrophic event outside of the control of either party, then the party who fails to perform may be excused. This kind of event is sometimes known as an event of force majeure, and typically includes occurrences like war, terror attacks, embargos, strikes, hurricanes, earthquakes and other uncontrollable and unforeseeable events.

The key is they have to be both uncontrollable and unforeseeable. Weather can be an event of force majeure and entitle you to an extension of time, but not always. Generally, for weather to be considered an event of force majeure, it has to be unexpectedly severe, like a 100-year storm, major flooding, a Category 4 hurricane or tornado. In contrast to these types of weather events, the more common weather-related impact involves rain, snow or extreme cold temperatures.

The problem is these less severe, but more common types of weather can still delay the work, yet still not entitle the contractor to an extension of time. Why? Because these weather events are not unforeseeable like the catastrophic events. We know it rains a lot in Seattle, and snows a lot in Buffalo, and gets too cold to pour structural concrete in many other places. And we know this because we can look at historical weather data for any particular location, which means, unless the weather you experience deviates significantly from the historical data, it wasn't unforeseeable.

Let's look at this another way ... nearly 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 test. 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.

A practical matter
Here is what this means as practical matter. For a contractor to justify additional time for weather, someone has to keep a lot of records. That's because the contractor has to prove the bad weather was worse than normal. And for an owner to defend against weather claims, someone else has to keep their own separate records of the same events. Below are steps you can take to 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 year or 10 year average of the weather as recorded at a NOAA 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 they 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.

Finally, remember we are only talking about extensions of time. Most contracts that provide for time extensions for weather delays grant time, but not money, either under a so-called no damages for delay clause, or under the specific provisions for time extensions. This means you have to plan for weather delays as well as cash flow concerns that might accompany those delays.

In short, make sure your schedule accounts for "normal" bad weather and your contract provides time extensions for abnormally bad weather. Then you can relax a little next time the forecast is something other than sunny skies.

Michael Callahan is a partner at Stinson Morrison Hecker LLP (the same firm as long-time columnist Susan McGreevy) where he assists clients with all aspects of their construction law needs, including litigation.