PREVENTATIVE MEASURES
Adverse weather conditions can significantly increase the cost of performing work in certain circumstances, by forcing a roofing contractor to work overtime, weekends or holidays to keep up with a schedule. Although a roofing contractor is entirely unable to perform work in certain weather conditions, he or she sometimes unwittingly assumes the risk of such weather conditions and may be held liable for the additional cost to overcome them because of the contract language. Most contracts drafted by owners or prime contractors require roofing contractors to complete the work by a certain date without regard for the effects adverse weather may have on that date. Some such contracts expressly allow extensions for “abnormal” weather conditions, meaning conditions that are unusual when compared to historical averages. A contract may also include an agreement by the roofing contractor to work Saturday and/or
Sunday at no extra charge to make up for days lost to weather during the week.
Examining a contract for schedule and delay-related clauses before agreeing to sign it and changing these clauses if necessary can save a roofing contractor substantial unanticipated expenses. Ideally, a roofing contractor should seek to define the contract time by the number of work days the number of days with conditions suitable to perform roofing work or should alternatively seek to modify the section addressing delays to provide that the roofing contractor will be given an extension of time in the event of adverse weather.
– more –
-1-

ADVERSE WEATHER CONDITIONS/2
READ THE CONTRACT
If the roofing contractors are being delayed by weather, it is important to review the contract as soon as the delay is recognized. Most contracts provide specific instructions for what must be done in the event of a delay and identify steps that must be taken by the roofing contractor to preserve his or her rights. The steps and notices required by the contract should be closely and strictly followed. Typically, the roofing contractor must provide written notice within two to three days of the commencement of the delay. Many contracts provide that failure to give the required notice in the established time period conclusively waives any entitlement to an extension. The best practice is to fill out a daily time ticket and indicate on the ticket that work could not proceed as a result of the weather.
Contemporaneous recording of specific dates lost because of weather is advisable. In one case, a roofing contractor seeking an extension produced daily time tickets corresponding to the dates he claimed to have been unable to work. During trial, it was revealed that the time tickets were forgeries created after the fact using the project manager’s best deductions and recollections of the dates lost to weather. The owner produced tickets showing the roofing contractor did work on several of the days he had claimed were lost because of weather, and the roofing contractor was denied any extension for weather-related delays.
WHAT IF THE CONTRACT HAS A SPECIFIC DEADLINE?
If a contract requires completion by a specific date with no extensions of time given for normal adverse weather conditions a roofing contractor should proceed under the assumption that the contract will be enforced as written. However, written notice to the other party of the
– more –
- 2 -

ADVERSE WEATHER CONDITIONS/3 impact that weather is having on the project cannot hurt. The contract is the starting point for the parties’ relationship, but it can be changed at any time by agreement. Not all owners will stand on the contract and require a roofing contractor to absorb the cost of delays caused by adverse weather. The lines of communication should be kept open and honest, a roofing contractor should provide prompt written notice of the weather-caused delay and its effect on your work, and a fair and reasonable party may work with a roofing contractor to reach an equitable solution. Moreover, if the owner does give an extension, whether out of kindness or ignorance of the contract terms, that extension may establish a precedent requiring him or her to give the roofing contractor another extension during the next weather event or written notice that no further extensions will be given.
WHAT IF THE WEATHER IS PARTICULARLY BAD?
Contract provisions requiring a roofing contractor to assume the risk of certain weatherrelated delays are generally enforceable, and it is typically the case that supervening circumstances making the performance of a contract more difficult and expensive than originally anticipated is not enough to excuse the contractor. However, there may be an exception if a roofing contractor can show performance has been rendered impossible or impracticable. Many contracts deny extensions only for adverse weather that is reasonably comparable to historical averages.
It is always possible that adverse weather could occur that might delay a roofing contractor to some extent. As a consequence, contractors may be expected to anticipate a certain amount of adverse weather when preparing schedules. The question then becomes the point at
– more –
- 3 -

ADVERSE WEATHER CONDITIONS/4 which weather has been sufficiently adverse so as to justify a time extension. Even where wellrecognized adverse weather has occurred, there can be disputes over just how many days of delay one is entitled to as a result of its occurrence. When a roofing contractor is unable to reach an agreement with the owner as to a time extension for adverse weather, the best course of action is, as soon as it becomes clear that no agreement can be reached, to provide a detailed written description of the delay and explicitly reserving a roofing contractor’s right to additional time.
Consult with an attorney regarding the nature, extent and foreseeability of the delays, and developing a strategy to resolve the matter with an owner or fight backcharges or extra expenses through dispute resolution.
CONCLUSION
When faced with delays caused by adverse weather, prompt documentation and notice of the delay are of the utmost importance. Following the steps outlined in the contract as strictly as possible provides a roofing contractor with the best opportunity to obtain an extension and to avoid incurring costs for acceleration or overtime otherwise necessary to overcome the delays.
A close reading of the contract before it is executed is an important and effective method to help avoid such liability.
# # #
- 4 -