By: Lane F. Kelman and Jennifer R. Budd
This winter has seen unprecedented snowfall and cold temperatures. The record-breaking conditions have wreaked havoc on construction projects. Whether you are a supplier, contractor, or developer, here is synopsis what you need to know about atypical weather:
- Under most construction contracts, unusual weather only entitles a contractor to additional time to complete work and not compensation. But, there are significant exceptions to the general rule:
– Delay to a project’s schedule that pushed the work into adverse weather is likely compensable.
– If the jobsite conditions result in extra-work, a change order may be appropriate.
– A time extension that is insufficient and results in acceleration, compression or labor inefficiencies would be cause for a claim.
- Written notice of unusual weather should be provided promptly and include:
– A description of the extreme weather
– A description of how the weather is affecting performance of the work
– The number of days impacted by the weather if known
– A reservation of all contractual rights due to the weather
– If you are a contractor, a statement that the work will not be accelerated unless it is authorized in writing and paid.
- If you are a supplier and cannot procure material due to shortages, unusual weather may constitute an “Act of God” that will excuse performance under a contract.
- In the event of damage to work performed or equipment, be sure to document with pictures before repairing or cleaning up.
- Follow all notice provisions required by your insurance carriers for any potential claims, including claims for damage to your property, business interruption, and any tort liability to others.
- Documentation of delays such as material or labor shortages, extra or repair work or resequencing is crucial.
- If a party you contracted with is unable to perform due to the unusual weather, you are under an obligation to reasonably mitigate your damages.
No one contract is the same. It is important to understand and abide by each contract’s terms in order to best protect yourself. If you have any questions about the impacts of weather on your project, we at Cohen Seglias are happy to discuss and assist you in minimizing or recovering your loss.