This winter it seems like no one has been able to escape the fury of Mother Nature. As a result, construction projects all over the country are now behind schedule. Because “time is money” for all of the project participants, disputes related to time extensions, liquidated damages, acceleration claims, and other delay damages are expected. In anticipation of these disputes, contractors and owners should review their contracts and consult with an attorney before submitting or responding to a weather related claim.
Standard construction contract forms often cover weather related claims. It is not unusual for contracts to allow the contractor to recover additional time, but not money, for certain types of weather related delays. In some contracts, however, a contractor may be permitted to recover money for weather related delays through a force majeure provision or cost reimbursement payment scheme. In addition, the contractor may be able to assert claims for its additional costs if the contractor’s work is accelerated or the weather creates additional work.
The AIA 201 form provides that:
If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time and geographic area, could not have been reasonably anticipated and had an adverse effect on the scheduled construction.
See AIA § 18.104.22.168.
Under these types of provisions, when a contractor submits a time extension for weather related delays, it must be prepared to demonstrate that:
- The weather conditions were abnormal. Most courts will hold that a contractor must expect some “bad weather.” Therefore, to support a justifiable weather related claim, the contractor must be able to establish that comparatively speaking, the weather at issue was “abnormal.” In order to meet this burden, contractors should obtain certified copies of weather records from the National Climatic Data Center and/or other reputable sources to establish that the weather conditions in question were atypical, and, therefore could not have been reasonably expected.
- The weather conditions had an adverse effect on the construction project. If a weather event did not impact a contractor’s progress or delay its work, a contractor does not have a claim. Ideally, if a contractor wants to submit a valid claim, a contractor should be prepared to demonstrate that a weather event delayed a specific aspect of the project that was on the critical path. The contractor should also attempt to quantify the lingering effects, if any, the weather had on the project.
- All contractual notice provisions were satisfied. Most construction contracts require some form of notice, and, if the required notice is not given, the contractor waives its claim. Therefore, the contractor should make sure that its notice provision is followed by putting its claim in writing to the owner (early and often). The notice should also describe, with as much detail as possible, the weather event, and how that event is delaying the contractor’s work.
In addition to the above, weather related issues could also implicate insurance policies. Therefore, insurance related notice provisions should also be followed in order to preserve claims for property damage and business interruptions.