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Rain Check: How are Inclement Weather Events Measured in Your Project’s Force Majeure Clause?

Category | Briefing Papers

Miles is a member of the firm’s Construction Law Department.  He can be reached at 612.359.7641 or mkelson@fwhtlaw.com.

Because adverse weather can impact nearly every conceivable type of construction project, both owners and contractors need to pay close attention to how their construction contract addresses which weather events will constitute force majeure events. A carefully drafted force majeure provision can ensure a contractor can receive schedule relief for, and only for, delays caused by the types of weather events that the parties intend. As seen in EDF-RE US Dev., LLC v. RES America Const., Inc., contractors should not expect to receive schedule relief for weather events which are not listed in the types of events listed. No. 51-CV-19-54, (Minn. December 11, 2019). Where the force majeure provision provides a list, a court may hold that the provision “means what it says” and does not include equally serious or unpredicted events that did not make the list. Id.

Fabyanske, Westra, Hart & Thomson, P.A., represented the owner of a Minnesota windfarm when the Balance of Plant Contractor sought excusable delays for weather events that were not specifically listed in the construction contract’s force majeure clause in EDF-RE US DEV., LLC.  The contract allowed Contractor to recover schedule relief for any work it was unable to perform due to a Force Majeure Event, defined as “including but not limited to” any “natural disasters, fire, hurricanes, tornadoes, lightning, floods, and earthquakes, or other unusually severe weather experienced at the Project Site that exceeded precipitation frequency in twenty-five (25)- year recurrence intervals with duration of 24 hours.”

After the project experienced periods of record high rainfall in June and July 2019, Contractor claimed force majeure delays caused by “excessive precipitation.” In fact, the weather was so severe over this period, the governor of Minnesota sought a declaration of “a major disaster for the State of Minnesota as a result of severe thunderstorms with heavy rain, straight-line winds, tornadoes, and flooding statewide during the period of June 15 through July 12, 2018.” The Project’s Civil Engineer of Record noted the particular rarity of the “unusually heavy rainfall” suffered at the Project:

The radar estimated rainfall for the site from June 17th to June 26th was 9.82”, this correlates to a ~150-year event over the 10-day period. Another series of rainfall fell later in June and the average radar estimate rainfall for the site from June 25th to July 4th was 10.19”, this correlates to a 200-year event over the 10-day period. Additionally the rainfall from July 1st to July 4th was 7.18” of rainfall which correlates to a ~75 year event over the 4-day period.

The recent rainfalls are historic not so much for their 1-day intensity but for the long-duration (weeks) intensities. …

Owner approved one day out of the period as a force majeure event because that day’s rainfall was a 25-year recurrence within 24 hours, but for the 4 and 10-day rain event periods, as noted by the Civil Engineer, the “rainfalls [were] historic not so much for their 1-day intensity but for the long-duration”, and they did not meet the contract’s definition of Force-Majeure Events which addresses 24-hour or 1-day intensities. When the parties were unable to resolve the disputed days from that period, Owner commenced suit in Minnesota District Court.

Contractor acknowledged that the June 18-June 21 and June 30- July 3 rainfall events did not meet the 24 hour duration for 25-year recurrence measurement, but moved for partial summary judgment arguing that the lengthy periods of unusually heavy rainfall should be consisted Force Majeure Events in the same way the 24 hour or 1-day measurements were. Contractor sought an interpretation where the contract’s use of “including but not limited to” broadens “other unusually severe weather” to include precipitation frequency in excess of 25-year recurrence intervals with duration of 24 hours. Contractor argued that because the definition of Force Majeure Event is not limited to 25-year recurrence intervals with duration of 24 hours, it is entitled to Force Majeure relief under the contract for alleged 75-year, 150-year, 200-year, and 500-year events at the Project Site.

The Minnesota District Court denied Contractor’s motion, determining that the rain events did not constitute Force Majeure Event as defined by the contract. The court applied the common law rule of contract interpretation “[t]he express enumeration of one instance of many belonging to the same class impliedly excludes the others.” Id. (quoting Egner v. States Realty Co., 26 N.W.2d 464, 473 (Minn. 1947)). The court concluded that the excluded “others” are rainfall events that are not 25-year/24-hour duration precipitation events, and therefore the 75-year, 150-year, 200-year, and 500-year events do not meet the contract’s definition of Force Majeure Events despite the fact they are of higher statistical rarity than the listed 25-year/24 hour measurement.

Conclusion

Both Owners and Contractors should be careful when listing out which types of circumstances will constitute force majeure events on the project. Even where the list is prefaced to be “including but not limited to” certain events, listing out specific instances of events may, in the court’s eyes, inherently exclude instances that did not make the list.

Announcements

Mark Becker was inducted as a Fellow into the American College of Construction Lawyers, an organization of nationally recognized construction lawyers. Dean Thomson was elected as the College’s President Elect. For more information click here.

Fabyanske, Westra, Hart & Thomson, P.A. is pleased to announce the recognition of nine attorneys, Mark Becker, Matt Collins, Rory Duggan, Gary Eidson, Marv Fabyanske, Kyle Hart, Jesse Orman, Dean Thomson and Tom Vollbrecht  by U.S. News Best Lawyers©, one of the oldest and most respected peer-review publications in the legal profession. Dean Thomson was also selected by Best Lawyers as 2023 Attorney of the Year in Construction Law. For more information click here.

Congratulations to the Fabyanske, Westra, Hart & Thomson, P.A. attorneys who have been named The Best Lawyers in America: Ones to Watch (2023 Edition). They are Alexander Athmann, Colin Bruns, Lucas Clayton, and Kenzie Longren. For more information click here.

This discussion is generalized in nature and should not be considered a substitute for professional advice. © 2023 FWH&T