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Benesch Women in Construction Spring 2020 Spring 2020 WomenBreaking Ground in Construction A publication of Benesch Friedlander Benesch’s Construction Law Coplan & Aronoff LLP’s Construction Group Webinar Series Benesch’s Construction Law Practice prides itself on being the construction law group that educates In this issue: the industry. We present nearly 100 seminars each year at industry conferences and meetings to our Construction Contract Impacts as a clients in their offices. Given the impact and pandemic of COVID-19, we are joining many colleges and Result of COVID-19: Force Majeure, universities in moving our educational programs online in order to best facilitate learning opportunities for Impossibility, and Impracticability members of the construction industry. Gender-Based Discrimination in the April 2 will begin our webinar series as we more comprehensively address Force Majeure clauses in Construction Industry and What relation to the current COVID-19 crisis facing our nation as a whole. Employers Should Be Doing Indemnity: A Complex Puzzle That Can The Effects of Substance Abuse on the Construction Industry Be Solved Thursday, April 9, 2020 | 12:00 p.m. – 1:00 p.m. ET No Contract, No Problem Presented by: RICHARD D. KALSON, Partner, Benesch The Spearin Doctrine: Providing a CLICK HERE to register. Recovery Mechanism for Contractor’s Differing Site Condition Claims for 101 Years Gender Considerations in Construction - A Primer on Gender- Do You Know What Your CGL Policy Based Discrimination and Women-Owned Business Enterprise Covers? Regulations Contractors and Subcontractors Continue Thursday, April 16, 2020 | 12:00 p.m. – 1:00 p.m. ET to Squander Claims By Not Properly Preserving Physical Evidence Presented by: CHERYL DONAHUE, Associate, Benesch; MARGO WOLF O’DONNELL, Partner, Benesch SUSAN M. WHITE, Associate, Benesch Losing the Protection of the Corporate Shield: One of the Greatest Risks Facing CLICK HERE to register. Any Contractor, Especially Those Who Utilize Union Labor and Face Potential Withdrawal Liability Exposure Managing the Unmanageable—Workplace Safety in a Cannabis Revolution www.beneschlaw.com Women in Construction Spring 2020 Women in Construction Contract Impacts as a Result Construction of COVID-19: Force Majeure, Impossibility, Benesch Breaking Ground and Impracticability Welcome to Women in Construction, a platform to foster growth and connections for women across all levels of the construction industry. In 2019, women held only 10.3% of all construction jobs, a drab increase from 9.5% a decade ago. While other industries have seen tremendous growth in the number of positions held by women, construction has remained Susan White Allyson Cady Abby Riffee stagnant, hovering between 9% and 10% In light of the COVID-19 pandemic, excusable phenomenon and is thus an Act of God. since 1995. delay clauses are at the forefront of everyone’s Conversely, a defense against the same is that The question then turns to why. Why aren’t mind. The effects this pandemic has had on such pandemic was foreseeable in light of more women flocking to an industry that is in the construction industry and supply chains recent health emergencies such as H1N1 and the midst of a labor shortage? Why aren’t more is only just beginning. While only a handful of SARS. women advancing up the leadership ranks in jurisdictions have drastically limited construction The force majeure clause may include a this industry? Studies have shown that women operations, projects across the country are catchall phrase in an attempt to broaden its in construction feel held back from advancement being adversely impacted by labor and material scope or expand its covered events. A colorable because of unconscious gender bias, a lack shortages caused by this crisis. argument that the language “including but not of role models, a lack of adequate training, Most construction contracts contain delay limited to” or “other causes” could be read to discrimination in the workplace, and an aura clauses, and many include force majeure imply that COVID-19 should be a covered event of exclusion they feel from being left out of the language, to address which party will bear the under such force majeure clauses. However, boys club. risk of delay. Force majeure (meaning “superior under the doctrine of ejusdem generis (“of the Women in Construction aims to fill in these gaps force”) may excuse (or suspend) a party’s timely same kind”), such phrases may not actually by offering legal bulletins, training, webinars, performance of its contractual obligations when encompass all events beyond the contractor’s networking events, and a forum to foster unforeseeable circumstances, or a supervening control. If the catchall language follows a list connections in the construction community, event not within the control of either party, of particular events or other specific language, educate one another on ways to perform more arise; however, its applicability to COVID-19 then only events similar to those listed will fall efficiently, and provide guidance on operating a will depend on the express written terms of the within the scope of the broader language. successful construction business. underlying contract. Force majeure clauses will If the force majeure clause includes no other vary drastically from contract to contract, and Please enjoy our first newsletter and be sure to qualification related to health or government are traditionally narrowly construed by courts. register for Benesch’s upcoming webinar series. functions, then under the contract interpretation We aim to transition to more female-generated Issues arise when the force majeure clause is rule of expressio unius est exclusion ulterus content—please reach out with any questions, not specifically defined. If the clause expressly (“express one thing, excludes the other”), topics, or issues you’d like to see covered. lists pandemics, epidemics, public health no other cause of delay would excuse emergency, and/or acts of government, then nonperformance. We also invite you to join the dialogue in our the COVID-19 outbreak may very well excuse LinkedIn group, Benesch-Women in Construction. Force majeure clauses are not boilerplate, and performance. More than likely, the phrase “Act it’s possible your contract may be completely Feel free to share this newsletter and invite other of God” may be the only contractual basis for silent on this issue. In these instances, colleagues to join us as well. Together we can a party seeking to excuse its performance as common law will control. There are two do more! a result of COVID-19. Such basis is untested doctrines that may excuse a party’s contractual and will depend on your jurisdiction. Arguments performance: the doctrine of impossibility and are being made that COVID-19 is a natural 2 www.beneschlaw.com the doctrine of impracticability. While often used must establish the occurrence of an event, the However, note that in a fixed-price contract, a interchangeably, these doctrines are uniquely nonoccurrence of which was a basic assumption party has expressly assumed the risk of price yet subtly different. of the contract. Finally, the party claiming increases—be that labor costs and/or costs discharge must show that it did not expressly of materials—thus, impracticability may not The doctrine of impossibility can be used as or impliedly agree to performance in spite of apply to excuse such performance. Further, a defense to breach of contract actions to impracticability that would otherwise justify a subcontractor’s duty to provide and install excuse one party’s performance regardless nonperformance. material for a general contractor will not be of the language of the underlying contract: excused as a result of its supplier’s inability “where parties enter into a contract on the In the context of COVID-19, impracticability to provide conforming goods where substitute assumption that some particular thing essential of performance may stem from availability of material is available from an alternative to its performance will continue to exist and be material and government interference that supplier.2 available for the purpose and neither agrees to drastically impacts one’s ability to perform. be responsible for its continued existence and availability, the contract must be regarded as Key takeaways: subject to an implied condition that, if before the • Review Your Contracts: Check your agreements for other clauses that may offer relief, such time for performance and without the default of as emergency clauses, both owner and contractor suspension and termination provisions, and either party the particular thing ceases to exist clauses that may provide for time extensions, price escalations, or standby time. or be available for the purpose, the contract • Incorporation: Look for incorporation language in your contract that can be used to invoke shall be dissolved and the parties excused from and rely on applicable definitions or clauses from the prime contract. performing it.”1 • Protect Your Claims: Review all notice requirements, timely respond to notices received by In light of COVID-19, to rely on the doctrine others, and begin contemporaneously documenting all schedule impacts and costs incurred of impossibility, one may not rely solely upon as a result of COVID-19. (Owners need to review loan documents to determine whether his or her own inability to perform, but must corresponding notices need to be sent to their lenders.) also negate the possibility of performance by • Alternatives: Absent express
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