The recent Nor’easter and large snow/ice storms are more than a logistical headache to contractors and subcontractors up and down the east and beyond; they bear significant cost considerations. The current weather impacts have triggered project suspensions, heated disputes over snow removal costs and total stoppages of subsurface work due to frozen ground. While weather events are beyond anyone’s control, the resulting financial fallout is governed strictly by the specific language of your contract. Knowing your rights under your contract during a storm is one tool to prevent long-term project risks.
Defining “Adverse Weather” Under the Contract
In construction, “bad weather” is not a universal excuse for non-performance. Precise contractual definitions are what matter. To preserve your rights, you must distinguish between “ordinary” seasonal weather and “abnormal” weather events:
- Ordinary Weather: Seasonal snow amounts or cold temperatures expected based on regional historical norms. The ordinary weather loss should be calculated for the whole job duration and included in the project schedule for each month. You do not get time or money for ordinary weather.
- Abnormal Weather: Events defined as “excessive” and “unanticipated” (e.g., a major Nor’easter). It is not the norm for the time of year. This weather, depending on the wording of your contract, may lead to a time extension and possibly a claim for damages. Remember: just because you had a major snowstorm that shut down a project for two days is not an abnormal weather delay if the 10-year average weather loss of days is three.
Warning: If your project has already been delayed due to adverse weather conditions, make your claims now before it’s too late.
The Dual-Notice Mandate: A Critical Compliance Map
A common strategic pitfall arises out of the mistaken belief that a single email regarding a storm covers all future claims. Most contracts mandate strict notice provisions and failure to comply can extinguish your right to recovery.
Strict compliance with the contractual time of notice deadlines (e.g., “five days after the start of the delay”) and delivery method (e.g., formal written notice sent via certified mail) is mandatory. A casual email often fails the legal test for “notice,” triggering the irreversible forfeiture of your claim.
Evidence and Documentation: The “So What?” of Recovery
Without documentation, a notice is merely an empty threat. You must demonstrate exactly how the weather impacted the critical path of the project.
Documentation Checklist:
- Daily Reports: Specifically tied to weather conditions and site access.
- Manpower Logs & Equipment Downtime: Records of idle resources and reduced productivity.
- Schedule Updates: Logic-linked updates proving impacts to the critical path.
- Invoices and Cost Segregation: Financial records that isolate weather-related costs from normal progress costs.
- Historical Data: Comparison against historical weather averages to prove the event was “abnormal” (e.g., 10-year averages calculated using National Oceanic and Atmospheric Administration or NOAA charts for the location of the project).
Risk Assessment: The Consequences of Procedural Failure
Owners and their lawyers weaponize procedural lapses as absolute bars to recovery. It is common for contracts to grant “time extensions” while explicitly barring “money/delay damages,” which is commonly referred to as a “no damage for delay” clause. Missing a deadline can have significant impacts to your contractual recovery.
