Marie Summerlin Hamm 2021-03-25 04:26:40
COVID-19 Implications for Construction Law: A Force (Majeure) to be Reckoned With
To say that much has changed in the last year in the construction industry and beyond would be to understate the surreal. For construction law practitioners, almost overnight a complex but well-established set of risks, exposures, and expectations gave way as clients navigated new government mandates and jobsite safety protocols and faced unprecedented supply chain and labor force disruption and delay at every level, from design to inspection.
All eyes turned toward the construction contract as a renewed interest in the interpretation of force majeure clauses swept across the industry. Succinctly translated from French to English, force majeure means “a superior force.” According to Black’s Law Dictionary, the term refers to “an event or effect that can be neither anticipated nor controlled; especially an unexpected event that prevents someone from doing or completing something that he or she had agreed or officially planned to do.”1 Does COVID-19 fall within this broad definition? How should practitioners address similar risks in future contracts? This brief piece highlights a number of recently written books, articles, and other resources relevant to this timely topic.
ABA Forum on Construction Law Publications
The ABA Forum on Construction Law is a leading source of high-quality, practice-focused reference materials. For those seeking a concise overview of frequently used provisions, the newly revised third edition of THE Construction Contracts Book provides annotated analysis and topic-by-topic comparison of the form contract documents and agreements available from the American Institute of Architects (AIA), the Engineers Joint Contract Documents Committee (EJCD.C.), and ConsensusDocs.2
The Forum’s newsletter series, Under Construction, is published three times a year and highlights current legal topics. Both the Summer 2020 and Winter 2020 issues showcased numerous COVID-19-related articles, including:
• COVID-19’s Impact on Construction: Treatment of Force Majeure Under Standard Form Contracts, co-authored by Jones Walker partner Christopher D. Cazenave and associates William J. Shaughnessy and William E. Underwood.3 The article delves into a comparison of how commonly used AIA, EJCD.C., and ConsensusDocs provisions will likely be construed in the context of COVID-19.
• COVID-19 as a Force Majeure. But What is Force Majeure? My Contract Doesn’t Even Use that Term, written by Swanson, Martin & Bell, LLP associate Bryan E. Rogers, considers whether the impacts of COVID-19 will qualify as a force majeure triggering event.4 This pithy article provides a succinct, fact-intensive formula for analysis.
• Also featured in the Summer 2020 issue of Under Construction, Richmond- based Hirschler construction lawyer Kelly J. Bundy’s article entitled Impossibility, Impracticability and Frustration of Purpose in the Age of COVID-19 considers reliance on common law doctrine to either excuse delay or to discharge contractual responsibilities in the absence of a force majeure provision.5
• Along with several other Hirschler attorneys, Bundy also co-authored Have Force Majeure Defenses Based on COVID-19 Been Successful This Year?, a post that appeared in October 2020 on both the firm’s Construction Law Blog and the VBA Construction and Public Contracts Law Section blog.
Other Resources
The Spring 2020 issue of Commercial & Business Litigation, a publication of the ABA Section of Litigation, included several articles addressing force majeure in the specific context of construction contract disputes. An article by Douglas V. Bartman, Force Majeure in Construction and Real Estate Claims, explores the historically narrow interpretation of “catchall” provisions and the importance of complying with notice requirements.6 What to Do When COVID-19 Disrupts Contractual Performance, authored by Julie Negovan, presents a sampling of cases demonstrating that in times of past disease outbreak and natural disasters courts construing force majeure clauses have looked to the precise language of the contract.7
Looking Beyond Lockdown
The unprecedented is now foreseeable and the lessons learned over the past year will undoubtedly shape both construction contracts and the court’s interpretation of force majeure clauses moving forward. While the sturdy foundations of contract law remain unshaken, it falls to all parties to future agreements to consider risk allocation and remedies with a renewed sense of urgency.8 Whatever the next new normal looks like, there is no doubt that the construction industry will remain essential to its success.
Marie Summerlin Hamm serves as director of the law library at Regent University School of Law. She is a past president of the Virginia Association of Law Libraries.
Published by Virginia State Bar. View All Articles.
This page can be found at https://virginialawyer.vsb.org/article/Law+Libraries/3985619/701245/article.html.