Much of the Eastern United States is just now emerging from a historic two week cold snap. In much of the Northeast and Mid-Atlantic, the temperature stayed below freezing for 15 days straight. Cities recorded the lowest temperatures in a quarter century. Winter Storm Grayson reeked havoc along the Eastern Coast bringing snow to places like Charleston and a crippling blizzard to Boston.
The record cold snap also impacted the construction industry. Delivery delays, the inability to apply weather sensitive applications (like cast in place concrete), and the unavailability of labor are just a few things that extreme weather can cause on a construction project. If they happen at the wrong time, delays can destroy project schedules and make previous delays even worse. Delays cost money and can mean the difference between a profitable project from both the owner and contractors perspective.
In order to determine what relief you are entitled to because of the Little Ice Age’s impacts to your project, you need to determine three things. First, is the delay compensable. Second, is the delay excusable. Third, is the delay critical.
Is it compensable?
Many contractors contain so called “no damages for delay” clauses that limit a contractor’s right to recover for project delays to an extension of time only. That means a contractor will be entitled to relief from the agreed upon substantial completion date but is not entitled to additional money for the delay. There are exceptions to no damages for delay clause, as I discussed in this blog post, back in the day. But, you need to prove those exceptions first.
Is it excusable?
Weather related delay are rooted in the common law rule of impracticability or impossibility of performance. This means that the weather delays are only compensable when they are so unusual that neither party could have reasonably anticipated them at the time of contract. Of course, it is reasonable to assume that one should expect cold weather in the Northeast during the winter. However, what about extreme cold weather for two weeks, like we just had. Better yet, what about the extreme cold in the Southeastern Conference portion of the United States?
Where weather related delays often become an issue is when they compound other delays. For example, a general contractor may have anticipated cold weather in the winter when it agreed to the schedule. However, it did not anticipate that other project delays would cause its ready mix contractor to have to pour in the winter rather than the fall, as it was anticipated. In that situation, the delay because an issue both for the general contractor and the subcontractor.
Is it critical?
From the prime contractor’s perspective, the delay must be on the critical path for it to matter. For example, a delay by an interior painting contractor will probably not impact the schedule to a large extent. However, a contractor whose completion is critical to multiple follow trades, like a structural steel contractor, is almost certainly on the critical path.
What about notice?
Assuming the delay is excusable and it is critical, you need to assure that you are giving proper notice to your counter party. Even if your contract contains a no damages for delay clause, you still want to seek an extension of time to avoid a liquidated damage claim. Many contract, however, require you to give notice within a certain amount of time of first learning about the delay. That means if the weather has impacted your schedule and you believe you will require additional time to perform YOU NEED TO GIVE WRITTEN NOTICE IMMEDIATELY. Otherwise, you will end up waiving your right to claim additional time or additional compensation.
Wally Zimolong
Wally represents contractors (and subcontractors) and developers. His clients build and develop residential, commercial, and industrial properties nationwide. Wally enjoys working with the owners of the businesses he represents because they tend to be entrepreneurs and all around interesting people.
