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Weather And Excusable Delay

Saturday, April 09, 2005 02:40 pm

Weather And Excusable Delay

It has long been axiomatic in the construction industry that bad weather constitutes excusable delay, entitling a contractor to an extension of the performance schedule. An extension of time is crucial, of course, for a contractor seeking to avoid the assessment of liquidated damages.

This common wisdom regarding weather delay is somewhat misplaced. Inclement weather does not automatically translate into an extension of time. Some degree of severity or unpredictability is required. Yet despite the significance of the issue and the frequency with which it arises, the standard for weather-related excusable delay remains ill-defined. Foreseeability

The most common statement regarding weather delay is that in order to be excusable it must be unforeseeable. One contractor, seeking to avoid liquidated damages, argued that spring rain and snow had caused excusable delay. A Pennsylvania court ruled, however, that rain and snow in April in western Pennsylvania is not unusual and should have been anticipated by the contractor. The delay was not excusable. Commonwealth of Pennsylvania Department of Transportation v. Interstate Contractors Supply Co., 568 A.2d 294 (Pa.Cmwlth. 1990); CCM April 1990, p. 3.

Another contractor characterized rainfall as "excessive"and sought an extension of time. That characterization was not enough to avoid liquidated damages, however. A New York court said the rainy weather was "a contract risk faced by all contractors and assumed in this case by claimant when it bid upon the job."P. T. & L. Construction Co., Inc. v. State of New York [...]

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