Thought Leadership

I’m Not Liable – It was the weather!

In the absence of a tornado, flood, hurricane, earthquake, tsunami, or other “Act of God,” and without a specific contract provision on point, the contractor bears the risk of delays and additional costs associated with adverse weather. Even in the unlikely event of an Act of God, the contractor will not be entitled to additional compensation from the owner for weather-related costs. In such circumstances, the contractor usually recovers only additional time to perform its work. Insurance might apply to cover damage to the contractor’s insured property. Insurance might also provide coverage for damage to the property of others caused by the contractor’s failure to protect it from the weather, such as when a temporary roof enclosure leaks. But, in general, the owner and the contractor must each absorb their own increased cost of performance caused by adverse weather.

Most standard commercial construction contract forms include terms that provide a party additional time to perform when highly unusual or severe weather events occur, even when they are less severe than an Act of God. When such terms exist, the specific contract language determines responsibility between the parties for weather-related costs. Typical weather clauses provide for an equitable extension of time where the party seeking relief proves that weather delayed the project and that the adverse weather was unforeseeable at the time of entering the contract.

We all know that weather can vary greatly from year to year. There is no bright line between weather that was foreseeable and weather that was not. Simply because the project experienced more rain than the 5 year average or air temperatures at 10 year lows is not sufficient under most contracts to qualify as a compensable weather event. Those who survive in the construction industry anticipate adverse weather events and prepare for them in their contract documents as well as in the field. Both the contractor and the owner should seek to include specific language in the contract that clarifies who bears the risk for such events and what relief would be available – keeping in mind that with acceptance of risk comes an expectation of compensation proportionate to the risk.