Weather Delays – When Are They Compensable

Weather Delays – When Are They Compensable

By Anthony J. Cox, Esq.

Provisions relating to weather delays in a construction contract are nothing new to most contractors. These provisions usually provide that delays resulting from inclement weather will entitle the contractor or subcontractor to more time to complete the project, and in some circumstances, that weather delays are not only excusable, but are compensable. That is, the contractor is entitled to additional time, and additional money. Contractually, however, the reverse may be true.

Damages resulting from weather delays can be waived subject to what many know as “no damages for delay” provisions. Ohio’s Fairness in Contracting Act prohibits waiver of liability “when the cause of the delay is a proximate result of the owner’s act or failure to act.” But if the controlling contract waives delay damages, and the subject delay is purely a weather delay outside the control of the owner, the contractor may be without any right to an adjustment of the contract price, no matter what it has to do to timely complete the project. The analysis does not end there, though.

In that same scenario, where a weather delay may be compensable is when it is the result of a delay on the part of the owner. Let’s say, for example, a preliminary portion of the contract was scheduled to be completed in early fall, but delays on the part of the owner result in that portion of the project being pushed to the winter. Then during the winter, extreme temperatures or snowfall prevent the initial phase of the project being completed per the schedule. The owner may complain that it can’t control the weather, but it was the owner’s delay that initiated the chain of events which ultimately led to the project being thrown off schedule by the weather. If the nature of the project makes this scenario a real-life possibility, contractors should consider negotiating language in their contracts protecting themselves in the case of weather delays.