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Given the interesting weather in Ohio recently, including flooding and storm damage in many areas of the State, it is important for parties to construction contracts to understand what their rights and responsibilities are for unusual weather and other "Acts of God."

A contractor or subcontractor who fails to perform within the time specified in the contract or subcontract is generally liable to the owner or contractor for damages and for its own increased costs for performance. Typically, a construction contract includes certain clauses absolving the contractor or subcontractor of responsibility for certain delays—often referred to as "excusable delays" in order to mitigate such harsh consequences beyond the control of the contractor. These clause or clauses deal with possible delays that affect scheduling and completion of the project. A "force majeure clause" is often included in a contract. "Force majeure" simply means:

[Law French "a superior force"] An event or effect that can be neither anticipated nor controlled; the term includes both acts of nature (such as floods or hurricanes) and acts of people (such as riots, strikes or wars). Also termed force majesture; vis major. Cf. ACT OF GOD.1

This article will discuss to what extent the parties to the construction contract may make effective use of force majeure clauses.

What Is Force Majeure?

Force majeure is the term used to describe an exceptional event or circumstance which is unforeseeable, beyond the control of the parties and one which could not reasonably be avoided. Contract negotiations associated with a force majeure clause are aptly described in Fundamentals of Construction Law, as follows:

[A]nother issue that almost always arises when discussing time or schedule is the definition of "force majeure," a term which means causes beyond the owner's or contractor's control. The owner can expect to pay a hefty premium in order to get a contractor to take the risk of all or most of the force majeure events, so it is rare. Thus, the owner will want a very tight definition of force majeure, while the contractor will argue for a very broad one. For example, the contractor will want delays due to inclement weather to be defined as a force majeure event. The owner likely will want the contractor to demonstrate that the weather substantially differed from what normally would be expected in the locality of the work at that time, based on historic weather data. The contractor may want labor disputes to constitute force majeure, while the owner may consider that to be something within the contractor's control. Sometimes they compromise: an industry-wide labor dispute will be considered force majeure while a dispute limited to the contractor's workforce will not.2

The term force majeure developed from the related concepts of frustration, impossibility, and commercial impracticability.3 Oftentimes, these related concepts are very narrow and most courts are extremely reluctant to excuse the performance of a party to a contract.4 Accordingly, contracting parties have added force majeure and related clauses to contracts to deal with certain uncertain events. These clauses are typically supplemented by other clauses addressing notice and related details necessary to handling any excusable delay claims. Following a force majeure event, the remedies can include a time extension, an adjustment to the contract price, or outright termination of the contract.

Delay and Force Majeure Events: Trends in the Caselaw

The guiding principal of these clauses is the recognition that certain delays which are not due to any fault of a contracting party are excusable delays. Force majeure events contributing to possible delays beyond the contemplation of the parties at the time of contracting and therefore excusable are sometimes labeled a cts of God and include earthquakes, tornadoes, hurricanes and floods.5

In United States v. Brooks-Callaway Co., 318 U.S. 120 (1943), the U.S. Supreme Court considered the ramifications of a force majeure clause in a contract pertaining to the construction of levees on the Mississippi River. The Court explained that force majeure clauses are included in contracts "to remove uncertainty and needless litigation by defining with some particularity the otherwise hazy area of unforeseeable events which may excuse non-performance within the contract period." Id. Therefore, according to the Court, "contractors know they are not to be penalized for unexpected impediments to prompt performance, and, since their bids can be based on foreseeable and probable, rather than possible hindrances, the Government secures the benefit of lower bids and an enlarged selection of bidders." Id.

Next, the Supreme Court indicated that unforeseeable causes "include, but are not restricted to, acts of God, or the public enemy, acts of the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather, or delays of subcontractors due to such causes." Id. The Court explained that "[n]ot every fire or quarantine or strike or freight embargo should be an excuse for delay under a [force majeure clause.]" Id. For example, "the contract might be one to excavate for a building in an area where a coal mine had been on fire for years, well known to everybody, including the contractor, and where a large element of the contract price was attributable to this known difficulty." Id. Or "a strike may be an old and chronic one whose settlement within an early period is not expected." Id. According to the Court, in any of these "situations there could be no possible reason why the contractor, who of course anticipated these obstacles in his estimate of time and cost, should have his time extended because of them." Id. Therefore, the Court concluded:

The same is true of high water or ‘floods.' The normally expected high water in a stream over the course of a year, being foreseeable, is not an ‘unforeseeable' cause of delay. Here plaintiff's vice-president testified that in making its bid plaintiff took into consideration the fact that there would be high water and that when there was, work on the levee would stop.' Id.

Weather patterns for any locality will include some forms of severe weather and flooding occurring on a seasonal basis. A contractor or subcontractor must contemplate that normal weather can and will disrupt the construction schedule and completion of the project and account for the delays in the contract or subcontract. Severe weather regardless of whether it is labeled an act of God may not necessarily excuse resulting delays.6 Factors to evaluate include "the frequency, duration, or intensity of severe weather" in order to assess if it is unusual; and therefore—"unforeseeable in light of the weather normally to be expected in the locality at the time specified for performance will resulting delays be deemed excusable."7 In some cases, "a seemingly fortuitous event as a flood will not excuse delays occasioned thereby if the flooding was foreseeable."8 "The duration of a weather-excused delay should include not only the time construction was halted by the storm itself but also any subsequent periods when the site was rendered unfit for work and additional time required for rework due to weather damage."9

An issue that repeats itself in the caselaw involves defining unusually severe weather.10 In Fortec Constructors v. United States, 8 Cl. Ct. 490 (1985), the Court held:

Unusually severe weather is "adverse weather which at the time of year in which it occurred is unusual for the place in which it occurred." Broome Construction, Inc. v. United States, 203 Ct. Cl. 521, 531, 492 F.2d 829, 835 (1974).See also Cape Ann Granite Co. v. United States, 100 Ct. Cl. 53, 71-72 (1943)cert. denied 321 U.S. 790, 88 L. Ed. 1080, 64 S. Ct. 785 (1944). Proof of unusually severe weather is generally accomplished by comparing previous years' weather with the weather experienced by the contractor. See Cape Ann Granite Co. v. United States, supra, 100 Ct. Cl. at 71-72. In the present case, contract provision 1A-06(b), a meteorological chart of past weather averages, established the usual weather conditions to be expected during contract performance. Notwithstanding the occurrences of unusually severe weather, however, a plaintiff is only entitled to an extension of contract time if such unusually severe weather has an adverse impact on the construction being performed. See Essential Constr. Co., ASBCA Nos. 18491, 18611, 18652, 18707, 78-2 BCA para. 13,314.

Accordingly, unusually severe weather must be atypical, unexpected, and most importantly have an adverse impact on the project.

In S.J. Lemoine, Inc. v. St. Landry Parish Sch. Bd., 527 So.2d 1150 (La. Ct. App. 1988), the Court evaluated whether the contractor's assertion that rain and cold weather justified a delay of twenty-nine days in a thirteen-month construction schedule amounted to "causes beyond the contractor's control." In pursuing this claim, the contractor produced no evidence that the twenty-nine days of rain and cold were above average. Therefore, the Court held that the adverse weather did not justify any portion of the claimed delay in performance. In evaluating this claim, the Court explained that although the delays were caused by "Acts of God," the contractor should have anticipated and prepared for the consequences of the adverse weather. Accordingly, the Court refused to grant the contractor's claim for delay.

Delay and Force Majeure Events: Trends in Ohio Caselaw

In Ohio, in order to use a force majeure clause as an excuse for nonperformance, the nonperforming party "bears the burden of proving that the event was beyond their control and without its fault or negligence." Stand Energy Corp. v. Cinergy Services, Inc. (2001), 760 N.E.2d 453. Melting snow, sizable amounts of rainfall, and saturated ground produce floods in Ohio. For example, central Ohio has seen the "Great Flood of 1832" and two years later a flood that washed out the National Road Bridge ( Broad Street).11 Floods in 1847 and 1883 were more devastating, however—the flood of 1913 "ripp[ed] through the existing levee, and put most of western Columbus under 26 feet of water."12 Since that time, the Army Corps of Engineers have widened the Scioto River and there is now an elaborate system of floodwalls, gates, and pumping stations.13

In Ohio flooding can be an excusable delay allowing contractors and subcontractors to seek additional time. In seeking to quantify whether a flood is an excusable delay or force majeure event, contractors and subcontractors will encounter the Ohio Supreme Court's opinion14 in Piqua v. Morris (1918), 98 Ohio St. 42, 120 N.E. 300, which explained:

The term ‘Act of God' in its legal significance, means any irresistible disaster, the result of natural causes, such as earthquakes, violent storms, lightning and unprecedented floods. It is such a disaster arising from such causes, and which could not have been reasonably anticipated, guarded against or resisted. It must be due directly and exclusively to such a natural cause without human intervention. It must proceed from the violence of nature or the force of the elements alone, and with which the agency of man had nothing to do. Id.

Several more recent Ohio cases illustrate the possible ramifications of this issue on construction contracts.

In Milton Taylor Constr. Co. v. Ohio Dept. of Transportation (1988), 572 N.E.2d 712, the Franklin County Court of Appeals reviewed this issue after almost 2 inches of rain fell in just over 24 hours. The contractor was building a culvert under a roadway to accommodate a stream from a nearby reservoir. After the rain and elevated water levels damaged the culvert and the concrete headwalls, the contractor sought reimbursement from ODOT under the contract documents for the additional expenses associated with repairing their work. Accordingly, the Court relied on Section 107.16 of ODOT's Construction and Material Specifications which states the following:

Contractor's Responsibility for Work. Until final written acceptance of the project by the Director, the Contractor shall have the charge and care thereof and shall take every precaution against injury or damage to any part thereof by the action of the elements or from any other cause, whether arising from the execution or from the nonexecution of the work. The Contractor shall rebuild, repair, restore, and make good all injuries or damages to any portion of the work occasioned by any of the above causes before final acceptance and shall bear the expense thereof except damage to the work due to unforeseeable causes beyond the control of and without thefault or negligence of the Contractor, including but not restricted to acts of God, of the public enemy or governmental authorities. Id. (Emphasis added.)

In interpreting this provision, the Court indicated that two exceptions existed relating to the contractor's request for additional compensation. First, if the damages were due to unforeseeable causes beyond the control of and without the fault or negligence of the contractor. Second, according to the Court "included within the first, and specified as damage caused by acts of God, of the public enemy or governmental authorities." Id.

First, the Court considered whether the facts and circumstances of this case fell within the definition of an act of God as set forth in Piqua v. Morris, supra . The Court held that the heavy rainfall did not constitute an act of God based on the testimony establishing that rainfall of that severity could occur every year. In relying on Piqua v. Morris, supra , and revisiting its definition of an "act of God," the Court indicated that the "application of the foregoing definition to the facts circumstances of this case results in our concluding that the rainfall herein did not constitute an act of God." Id. Next, the Court considered "whether the rainfall constituted an unforeseeable cause beyond the control of the plaintiff." Id. The Court indicated that the rainfall could reasonably have been expected and was not an "unforeseeable cause" in the language of Section 107.16. The Court also considered additional contract documents noting that the contractor was to "construct the pipe arch to handle a fifty-year frequency rainfall." Id. "In other words, the pipe was to be constructed in such a fashion as to accommodate a rainfall of such magnitude that it occurs only once every fifty years." Id. The evidence herein indicated that the rainfall … was a one-year frequency rainfall, or, a rainfall likely to occur once each year. Therefore, the Court "cannot conceive of any interpretation of the facts which would suggest that a one-year frequency rainfall is an unforeseeable event." Id.

In Lockhart v. City of Alliance(2000), 2000 Ohio App. Lexis 4382, a contractor sought damages from a municipality in a dispute over a project to repair the municipality's reservoir spillway. The contract documents required the municipality to keep the water level lowered except under certain circumstances including acts of God. After heavy precipitation and a flood, damage accrued to the spillway and the resulting dispute concerned the cost of repairs. The municipality claimed that it was not at fault and utilized the act of God language as a shield instead of a sword. The contractor asserted that the evidence in the present case demonstrated a rainfall of 1.29 inches coupled with a snow melt of 3 inches and indicated that the municipality "could have prevented the water damage from the happening by lowering the water level during or after construction, opening drain valves when the danger first threatened, or, by ordering construction of a diversion ditch before the damage had occurred." Id. The contractor "conclude[d] that because the municipality should have foreseen that 1.29 inches of rain in addition to a 3-inch snowmelt could have occurred and that [the municipality] could have taken reasonable steps to avoid the overflow, no act of God occurred." Id. Ultimately, the Court held that the contract clause at issue included "acts of God, flood, heavy rains, etc. and other actions beyond [the] control which may alter the water level." According, the Court found that the municipality was not liable to the contractor for the repair to the spillway.

In Fiber Crete Construction Corp. v. L.W.L. (1987), 1987 Ohio App. Lexis 9290, the Court considered the contractor's claim that damage to a construction project was caused by adverse weather disrupting the function of a balloon inflation equipment not the contractor's failure to maintain the equipment. According to the Court, after a "light snow fell," snow and moisture collected and froze the equipment causing damage to the structure. Id. In denying the contractor's claim, the Court held:

An Act of God, or vis major, is an irresistible disaster, the result of natural causes, such as earthquakes, violent storms, lightning or unprecedented floods, which could not have been anticipated. The evidence here is of a light snow and a freeze at night on December 30 th. This change in weather conditions is not unusual in Auglaize or adjoining counties in the closing days of December. The variation in the weather was ordinary and normal, not extraordinary in nature. Such a change in the weather is common knowledge and one to be anticipated in the community. Id.

In Sherman R. Smoot Co. v. Ohio Dept. of Administrative Services (2000), 136 Ohio App. 3d 166, 736 N.E.2d 69, the Court considered Smoot's claim related to weather delays in a constructive acceleration claim. The applicable DAS contract provisions was as follows:

It is further agreed that Time is Of The Essence of each and every portion of this Contract and of the Specifications wherein a definite and certain length of time is fixed for the performance of any act whatsoever; and where under the Contract an additional time is allowed for the completion of any work, the new time limit fixed by such extension shall be Of The Essence provided that the Contractor shall not be charged with liquidated damages when the delay in completion of the work is due to:

***

(2) Unforeseeable cause beyond the control and without the fault or negligence of the Contractor, including but not restricted to, acts of God, or the public enemy, acts of the Sponsor Agency, acts or omissions of another Contractor in the performance of a separate Contract with the Sponsor Agency, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather[.] *** [Emphasis added.)

Additionally, the following provision is was applicable:

The Contractor shall not be entitled to additional compensation for delays resulting from causes beyond the State's control. Rain or other precipitation or temperature within a range of twenty (20) percent of normal for the time of year covered by the Contract shall be expressly excluded from the definition of "Acts of God," and it shall be the duty of the Contractor to take such action as necessary to protect against either damage or delays or both because of such circumstances. [Emphasis added.]

In asserting its claim, Smoot argued that daily precipitation or temperature which deviates from the normal precipitation or temperature for that day by more than twenty percent constitutes an "Act of God" or "unusually severe weather." Smoot sought to establish its entitlement to a forty-day weather-related extension, through the introduction of National Weather Service data indicating that the forty days at issue on which the temperature or the precipitation deviated from the normal temperature or precipitation for a given day by more than twenty percent.

The Court found that Smoot's reading was simply erroneous. Specifically, the Court disagreed with Smoot's contention that any daily deviation in temperature or precipitation of more than twenty percent shall entitle the contractor to a weather-related extension. According to the Court, "the provision provides that the contractor shall not be entitled to a weather-related extension unless the precipitation or temperature on the day for which the extension is sought deviated from the normal precipitation or temperature for that day by more than twenty percent." Id. Therefore, the Court held that "where the precipitation or temperature on a given day deviates from the normal precipitation or temperature for that day by more than twenty percent, the question remains whether the weather on that day so interfered with the contractor's ability to work that it constituted an "Act of God" or "unusually severe weather." Id.

Therefore, the Court concluded that Smoot failed to establish that the weather on any of the forty days on which the temperature or precipitation deviated from normal by more than twenty percent constituted an "Act of God" or "unusually severe weather." The Court held that "[w]hile Smoot did present evidence that cold, rain and snow often made working conditions at the site very difficult, it presented no evidence that the weather actually prevented it from accomplishing any work at the site on any one of the forty days in question." Id. Therefore, the Court concluded that Smoot failed to establish its entitlement to any extension of time.

Delay and Force Majeure Events: Making the Claim

A force majeure event could be a source of delay on the project and may be an "excusable delay" entitling the contractor or subcontractor to an extension of time. The first thing a contractor or subcontractor should do upon experiencing a delay is provide notice according to the contract. Under AIA Document A201, a contractor or subcontractor encountering adverse weather conditions or flooding that are not foreseeable or atypical for the period of time will have 21 days to provide written notice (AIA Section 4.3) after recognizing the possibility of a weather delay claim. In order to assemble such a claim, the contractor or subcontractor must collect the applicable scheduling documents for the project and comparative weather data from the National Weather Service. Daily job logs or progress reports are important and must include weather information and should document the men, material, and equipment and progress of the job and how they are impacted by the unforeseeable event. Accordingly, an "as planned" and as built schedules can be assembled to illustrate the progress and delays on the job. Most importantly, pictures and videos are extremely valuable in making this claim.

How Are Force Majeure Events Handled in Standard Construction Form Contracts?

The AIA A201 (1997) General Conditions does not utilize the term "force majeure"--however, addresses the concept of force majeure in Article 8 – Time, and specifically section 8.3, titled "Delays And Extensions of Time." Section 8.3.1 states:

8.3.1 If the Contractor is delayed at any time in the commence or progress of the Work by an act or neglect of the Owner or Architect, or of an employee of either, or of a separate contractor employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor's control, or by delay authorized by the Owner pending mediation and arbitration, or by other causes which the Architect determines may justify delay, then the Contract Time shall be extended by Change Order for such reasonable time as the Architect may determine.

In the AIA A 201 (1997) Section 4.3.7.2, there is a definition of weather delay:

If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time and could not have been reasonably anticipated, and that the weather conditions had an adverse effect on the scheduled construction.

The standard form AGC documents do not use the term "force majeure," but the concept is addressed in AGC 200 (2000) Standard Form of Agreement and General Conditions. In AGC 200 (2000) Section 6.3.1 the language is broader in scope than its equivalent in the AIA documents insofar as it addresses hazardous materials and concealed or unknown conditions. The AGC 200 does not preclude the contractor from recovering damages as a consequence of a force majeure event beyond the control of both the contractor and owner (on this issue, the AIA A201 is silent). According to AGC 200, a contractor is entitled to a time extension and its actual cost without a fee as a consequence of a force majeure or equivalent event.

Lessons for Subcontractors and Contractors

Contractors and subcontractors must check the provisions in their contracts to identify the force majeure clause and related clauses dealing with events or "excusable delays" providing extensions of time, additional cost and possibly suspension of the works. Contractors must document and record any events causing delay and additional cost to the project. Simple yet effective measures are a job diary kept contemporaneously and a digital camera. Finally, be familiar with any necessary contractual notices and assure that if delayed by an event outlined in the contract that notice is provided to the owner or contractor in a timely fashion. Claims must ultimately be supported with weather records or other documentation showing the exceptional nature of the impact.

There is no question that recent weather has impacted contactors in Ohio, the question remaining to be answered is whether these events were so exceptional to be considered subject to force majeure, and if so, whether they are compensable or not under the applicable contract.

1 Black's Law Dictionary.

2 Fundamentals of Construction Law (American Bar Association, Forum on the Construction Industry 2001) p. 29.

3 Wm. Cary Wright, Force Majeure Clauses and the Insurability of Force Majeure Risks, The Construction Lawyer (Fall 2003) p. 16.

4 2-6 Construction Law Section 6.09 (Matthew Bender & Co., Inc. 2005) Timeliness of Performance citing Prather v. Latshaw, 122 N.E. 721 (1919) ("Court stated that contract performance was not excused by acts of God or inevitable accidents.")

5 2-6 Construction Law Section 6.09 (Matthew Bender & Co., Inc. 2005) Timeliness of Performance citing New Pueblo Constr., Inc. v. State, 144 Ariz. 95, 696 P.2d 185 (1985) (catastrophic storm); LeFebvre v. Callaghan, 33 Ariz. 197, 263 P. 589 (1929) (tornadoes); Garrett v. Beers, 97 Kan. 255, 155 P. 2 (1916) (drought); Hecht v. Boston Wharf Co., 220 Mass. 397, 107 N.E. 990 (1915) (high tides); Maplewood Farm Co. v. City of Seattle, 88 Wash. 634, 153 P. 1061 (1915) (cyclones). Compare Tombigbee Constructors v. United States, 420 F.2d 1037 (Ct. Cl. 1970) (flooding entitled contractor to time extension), and F.D. Rich Co., 1963 B.C.A. (CCH) P 3710 (1963) , with Prather v. Latshaw, 188 Ind. 204, 122 N.E. 721 (1919) (flooding does not excuse contract performance; contractor's obligation to perform absolute without regard to supervening acts of God).

6 2-6 Construction Law Section 6.09 (Matthew Bender & Co., Inc. 2005) Timeliness of Performance.

7 2-6 Construction Law Section 6.09 (Matthew Bender & Co., Inc. 2005) Timeliness of Performance citing Fru-Con Constr. Corp. v. United States, 44 Fed. Cl. 298 (1999); Blue Ribbon Remodeling Co. v. Meistrich, 97 Ohio Misc. 2d 8, 709 N.E.2d 1261 (1999); Broome Constr., Inc. v. United States, 492 F.2d 829, 835 (Ct. Cl. 1974) (Usually severe weather must be construed to mean adverse weather which at the time of year it occurred is unusual for the place in which it occurred"); Stone v. City of Arcola, 181 Ill. App. 3d 513, 536 N.E.2d 1329 (1989); C.O.A.C., Inc., 88-3 B.C.A. (CCH) P 21, 159 (1989); Goodner Constr. Co. 99-2 B.C.A. (CCH) P 20,656 (1988); cf. Allied Contractors, Inc. 1962 B.C.A. (CC) P 3501 (1962) (comparison of weather patterns over proceeding 10-year period used to determine whether conditions complained of were unusually severe); Lucerne Constr. Corp., 82-2 B.C.A. (CCH) P 16101 (1982) (evidence of weather 70 miles from site insufficient to establish excusable delay).

8 2-6 Construction Law Section 6.09 (Matthew Bender & Co., Inc. 2005) Timeliness of Performance citing Otinger v. Waterworks & Sanitary Sewer Bd., 278 Ala. 213, 177 So.2d 320 (1965) Caren v. Andrew, 133 Cal. App. 2d 402, 284 P.2d 544 (1955).

9 2-6 Construction Law Section 6.09 (Matthew Bender & Co., Inc. 2005) Timeliness of Performance.

10 Construction Contract Provision Excusing Delay By "Severe Weather," 85 A.L.R.3d 1085.

11 Ed Lentz, This Week News (January 30, 2005) Columbus: A world lost in water. The article notes that "notable river risings occurred in 1852, 1859, 1862, 1866, 1869, 1870, 1875, and 1881."

12 Ed Lentz, This Week News (January 30, 2005) Columbus: A world lost in water.

13 Ed Lentz, This Week News (January 30, 2005) Columbus: A world lost in water.

14 Other cases defining floods include Lytle v. The Pennsylvania Rd. Co. (1951), 108 N.E.2d 72, where the Court explained:

So, in the case before us, the defendant was required to use the reasonable care and engineering skill in the construction and maintenance of its bridge, to avoid damage to the plaintiff by reason of freshets and floods, which experience taught might be reasonably expected to occur at any time, but it was not required to anticipate and use precautions to prevent injury from floods caused by unusual, extraordinary and unexpected storms which reasonable foresight or sagacity would not have foreseen, nor was it liable for an act of God which would have caused damage regardless of negligence. Weather this storm was of such a character was a question for the jury under proper instructions, and a refusal to so instruct upon request constituted prejudicial error.

Or Frazier v. Westerville (1941), 36 N.E.2d 812, where the Court indicated:

The test whether or not a flood is such as to be deemed an act of God apparently is whether after considering the laws of hydraulics, the natural formation of the country, the character of the stream, its habits and history, to the extent of learning its probable behavior under conditions which experience has shown are likely to recur, a prudent man would have anticipated it. The fact that similar floods had occurred has been held to tend strongly to show that they were not so extraordinary and unusual that they might not reasonably have been expected to occur.