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After storm, contractors turn to contracts

Maryland construction companies take into account a chance of snow when a building schedule runs into the winter months. But construction lawyers say the schedule typically anticipates an inch or two per storm, not the inch or two per hour the state received at times in the last week.

While many lawyers are confident their clients will be able to obtain extensions of their deadlines, they caution that this does not translate into an extension of funds.

And contractors have plenty of other factors to consider as their sites sit idle, from when to resume construction to who will pay for snow removal.

“I imagine there will be a lot of contractors dusting off their contracts,” said Matthew G. Hjortsberg, a member of Bowie & Jensen LLC in Towson.

Some general principles govern all construction projects in the aftermath of the snowstorms or similar weather events. Any physical damage caused by the storms to sites or equipment is covered by some type of insurance, be it homeowners’ or a builder’s risk policy, which insures an unfinished project.

“A heavy storm is not creating a lot of litigation; it’s creating more of an insurance nightmare,” said Stanford G. Gann Jr. of Levin & Gann P.A. in Towson.

Contractors usually are compensated for weather delays only if the delay is partially the owner’s fault: if, for example, the owner causes a project that would otherwise have been completed in November to still be under construction during a January blizzard.

“The only time a contractor can get money for bad weather is if the owner puts them in bad weather,” said Louis J. Kozlakowski Jr., a partner at Wright, Constable & Skeen LLP in Baltimore

Standard construction contracts also contain so-called “Acts of God” clauses, which account for weather events. Under such clauses, delays are allowed if the weather is adverse and conditions exceeded what is normally expected.

The past week certainly meets both requirements, Kozlakowski said. But an Act of God only gives contractors more time, not more money, he added. An owner is not responsible for an Act of God, something that Kozlakowski often reminds his clients.

“You can’t sue God for the snow,” he said.

When to resume construction depends on a variety of factors, including site accessibility, availability of materials and what work needs to be done. Builders, in creating a schedule, also attempt to finish exterior work by wintertime, since interior work can typically be done even with several feet of snow on the ground.

“They’re trying to figure out the most cost-effective and timely manner to get the workers back on the site safely,” said Andrew H. Vance, of counsel to Hodes, Pessin & Katz P.A. in Towson.

That could mean removing snow from the entire site or clearing a path to allow workers access to the site. Who pays for snow removal is usually spelled out in contracts.

John F. Morkan III received a call Tuesday from a client who wanted to remove snow from the roof of his Eastern Shore assisted living facility. The building is being leased to a tenant and is in the middle of having its roof replaced.

Despite all of the variables, the lease said the tenant was responsible for the building’s maintenance, meaning the tenant would pay for the removal, said Morkan, co-chair of the construction group at Ober, Kaler, Grimes & Shriver PC in Baltimore.

“That was the bottom-line conclusion,” he said. “All of the complexities were dictated by the contract.”

Occasionally, however, it is the bottom line that dictates the conclusion. Bowie & Jensen’s Hjortsberg said a client once told him he was tasked with putting in underground lines near the Chesapeake Bay during an early 1970s winter when the bay was frozen, a condition that created a level of frost seven times deeper than normal. The client’s company elected not to wait for warmer weather, instead bringing in extra equipment to dig deeper and finish the job on schedule.

“They decided it was going to be cheaper to do it this way than to wait for the thaw,” Hjortsberg said.

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