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Weather Proofing Your Project and Payment Rights

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Pittsburgh Business Times  - May 2, 2014

By: Lane F. Kelman

Did this winter’s extreme amounts of snow, sleet, freezing rain and abnormal temperatures leave your project out in the cold? This winter wreaked havoc on construction projects across the region. Perhaps you learned this the hard way when your supplier refused to pour cement, crews didn’t show or site work was left for another day.
At my firm we’ve received dozens of emails and calls from clients who don’t know their options when they are confronted with extreme bad weather, and a project’s schedule and pricing appear frozen. We have one client who ran into trouble at a ski resort. They experienced delays, unproductive labor and extra work, all due to snow and extreme temperatures. If you are a general contractor, subcontractor or supplier unable to perform or your work is impacted due to unusual weather, you don’t just have to twist in the wind. Instead, here’s what you need to know when dealing with extreme weather conditions:

Weather impacts can get you $ and not just time
Under most construction contracts the general rule is that unusual weather only entitles a contractor to additional time to complete work, not additional compensation. Like any other general rule, there are exceptions. If the project is already delayed for a nonweather-related reason and that delay pushes your construction schedule into an adverse weather event, you may be able to receive compensation and not just time. If the weather causes conditions that result in extra work, a change order should be issued. Even if you only receive a weather-related time extension, you may still have a claim. Time extensions to the schedule that are not sufficient and lead to additional manpower or costs can be compensable claims.

There aren’t snow days if you don’t ask
Prompt written notice is critical to protecting your rights on any construction project for any reason. Bad weather does not excuse lack of notice. At a minimum, written notice should provide a description of the extreme weather and how the weather affects performance of your work, the number of days impacted by the weather along with potential costs and a reservation of all contractual rights due to the weather. Written documentation of delays such as material or labor shortages, extra work or repair work, or resequencing is also crucial. If you are a contractor dealing with lost time due to weather, you should not accelerate your work to make up the lost time without a prior written agreement. Understand your insurance policies and provide notice to your carrier regarding damage to your property, insurance claims for business interruption and any suspected liability for damage to others. These days everyone carries a phone with a camera — take pictures of conditions and damaged work before proceeding.

The bottom line is no storm event or contract is the same. It is important to understand and follow each contract’s terms. Minimizing or recovering your loss is all about protecting your interests. Don’t get caught in the cold. Know your contract and rights.

Lane F. Kelman is a partner in the construction practice groups of Cohen Seglias Pallas Greenhall & Furman PC. 

"Weather Proofing Your Project and Payment Rights" was published in the Pittsburgh Business Times on May 02, 2014 and is available on their website.