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How A Force Majeure Clause Offers Protection from Hurricane Delay Claims Joshua B. Loren and Bruce E. Loren | Nov 19 2019

Hurricanes can render construction projects completely helpless and, at the very least, result in long delays and extensive damages. Florida construction projects are at particular risk due to the volume and intensity of storms affecting the state. Now is a good time for contractors to evaluate how their contract documents handle delays related to hurricane and tropical storm impact and revise your form contracts accordingly.

Force majeure literally means "superior force" in French. It is a contract provision that relieves the parties from performing their contract obligations when certain circumstances beyond their control arise, making performance inadvisable, commercially impracticable, illegal, or impossible. Force majeure clauses define what happens after a specified event, and can be tailored to a contractor’s specific needs. The clause should clearly state:

  • What events are covered;
  • The remedies available; and
  • The parties’ obligations and responsibilities after the event.

Examples of covered events can include: named tropical storms/hurricanes; rain more than "X" amount during a 24-hour period; and sustained winds over a specified amount. A sample force majeure clause is provided below.

SAMPLE CLAUSE:

No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from the following force majeure events ("Force Majeure Events"): (a) acts of God; (b) flood, fire, earthquake, hurricanes, or tropical storms or rain more than _____ inches in any 48 hour period; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the party impacted by the Force Majeure Event (the "Impacted Party"). The Impacted Party shall give written notice within five (5) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.

There are many parts of a well-drafted construction agreement. All of them often seem like unnecessary legalese until an unusual event occurs, claims are made and litigation is commenced. Avoid unnecessary litigation or strengthen your position in the litigation with a well-drafted agreement and a company-wide standard process to comply with all deadlines in the agreement. A certified construction attorney can assist with all these issues.

Bruce E. Loren and Joshua B. Loren of Loren & Kean Law are based in Palm Beach Gardens and Ft. Lauderdale. Loren & Kean Law is a boutique law firm concentrating in construction law and employment law. Bruce Loren focuses his practice on construction litigation and has been Certified by the Florida Bar in Construction Law since 2006. The firm represents contractors and owners in a wide range of disputes, including payment bond claims, lien disputes, construction defects, and project delays. They can be reached at jloren@lorenkeanlaw.com or bloren@lorenkeanlaw.com or 561-615-5701.