Excusable or Non-Excusable Delays

Delays may be deemed excusable or non-excusable. The language of the contract determines how the delay will be classified. Contracts often contain provisions that the owner or general contractor must receive written notice when there is an excusable delay. Even if the contract contains no provision regarding written notice, contractors should provide written notice of an excusable delay to the owner.

Some delays, excusable delays, may result in only an extension of time to complete the work rather than resulting in one of the parties having to pay delay damages. These delays are usually caused by acts of God such as severe weather. Other delays may result in an extension of time to complete the work and an adjustment in the contract price. This type of delay would result, for example, when an owner supplies defective plans or specifications, see United States v. Spearin, 248 U.S. 132 (1918), or when the contractor performs additional work. See Davis v. Badders, 95 Ala. 348, 10 So. 422, 426 (1892). If a delay is unexecusable then, the injured party may recover liquidated or actual damages.

In Cove Creek Development Corp. v. APAC Alabama, Inc., 588 So.2d 458 (Ala. 1991) the Alabama Supreme Court considered the finding of a trial court that a 285 day delay was “totally excused” because of (1) interference by another subcontractor, (2) changes to the plans and specifications initiated by the general contractor, and (3) unanticipated adverse weather conditions. The Court found that although all of those conditions may have indeed caused the subcontractor not to complete its work by the deadline, they did not believe that these were excusable delays so as to nullify the liquidated damages provision in the contract. The court was persuaded by a provision in the contract that allowed for an extension of time related to the delays.