The construction industry is getting ready to awake from winter hibernation. Longer daytime hours and warmer weather also marks the beginning on various construction projects, Unfortunately, Mother Nature does not always cooperate with even the best planned construction schedules.
April showers bring May flowers, as well as delay claims. The construction industry must address the impact of unusually severe, or in Maryland’s case, unseasonal and snowy spring weather.
Many construction law disputes revolve around delay claims. Weather is one of the most frequent types of delays that force contractors to extend their schedule to complete contracted work. Weather delays can cause many additional costs including the costs of maintaining an idle workforce and equipment, unabsorbed office overhead, and lost efficiencies among others.
A construction contract should dictate who bears the risk of loss in these types of situations in order to recover lost costs due to weather. A specific contract will include examples of compensable delays. The general rule, however, is that if a delay was avoidable by exercising foresight and care, the negligent party is responsible for the additional costs.
Many believe that down-time due to inclement weather automatically entitles the contractor to a time extension. In reality, an extension of time depends upon the contract’s language regarding weather delays. In most weather delay claim cases, a contractor is entitled to additional contract time, but not additional compensation.
According to the American Institute of Architect’s (AIA) contract documents, “if the Contractor is delayed at any time in the commencement or progress of the Work by any cause beyond the control of the Contractor, the Contractor shall be entitled to an equitable extension of the Contract Time.” The document goes on to define adverse weather conditions and weather that is not reasonably anticipated as causes for delay that are beyond the control of the Contractor.
Contractors should make a habit of creating substantial records of business operations in order to demonstrate evidence to support their delay claim due to the factual nature of weather claims. The contractor should be prepared to establish their weather delay claim with reasonable documentation, such as weather data from the National Oceanic and Atmospheric Administration.
In addition, weather analysis should be geographically limited. For example, an unusually severe weather delay on a construction site in Nashville, Tennessee may be very different than one in Baltimore. The mountainous and winding one lane roads in the surrounding rural areas of Nashville can create dangerous working conditions at even the slightest hint of snow. Conversely in Baltimore, it takes more severe weather to paralyze the roads, commuters, and delay construction projects.
The weather must have actually impacted the construction schedule. Simply stating that there was a delay is not sufficient without showing positive correlation between the delay and the damages. Contractors have to determine to what extent the inclement weather affected material delivery, access to the site, or safety measures. Keeping appropriate records, including daily reports, will assist a contractor with recovering from a delay claim.
A well written construction contract should include examples of acceptable weather delays and a means for determining what happens when Mother Nature refuses to cooperate and a construction project gets stuck in the mud.