/>iIn Trustees of Boston University v. Clough, Harbour & Associates LLP, No. SJC-13685, slip op. (April 16, 2025), the SJC issued an important opinion on the application of the statute of repose that relates to indemnification claims arising out of the “design, planning, construction or general administration of an improvement to real property” and places an outside limit on such claims to six years “after the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner.” G.L. c. 260, §2B.
Given the length of time which construction, architectural, or engineering issues may take to come to light, the decision is important for both drafting indemnification agreement generally and understanding available remedies against design professionals and analyzing risk.
Background
The factual background was largely undisputed: Boston University (BU) engaged Clough, Harbour & Associates LLP (CHA) to serve as architect for a new synthetic turf field at the university. After work finished, Boston University alleged that CHA improperly designed the field and it was unusable. The contract between Boston University and CHA contained an indemnity provision: “To the fullest extent permitted by law, [CHA] shall indemnify . . . [the university] . . . from and against any and all . . . expenses, including, but not limited to, reasonable attorney’s fees, to the extent caused . . . by the negligence of [CHA].” After more than six years passed, Boston University sought reimbursement from CHA for the damages incurred. When CHA declined, BU brought suit seeking enforcement of the indemnification provisions.
Legal Issue
CHA moved for summary judgment on the basis that the tort statute of repose, G. L. c. 260, § 2B, which eliminates a cause of action in tort six years after the opening of an improvement to real estate. The Superior Court agreed and awarded CHA summary judgment.
Taking the case on direct appellate review, the SJC grappled with the question of whether a contractual claim for indemnification for alleged negligence amounted to a tort claim (subject to the tort statute of repose) or a contractual claim (specifically exempted from the tort statute of repose). The Court held that BU’s claim was based on CHA’s breach of the contractual indemnity provision, not on tortious behavior and, therefore, the claim was not barred by the tort statute of repose. The Court’s reasoning was as follows:
First, the SJC noted that courts should look to the “gist of the action” and that a party’s own classification of its cause of action is not dispositive. Hendrickson v. Sears, 365 Mass. 83, 85 (1974) (party may not “escape the consequences of [the tort] statute of repose . . . merely by labelling the claim as contractual”).
Second, the SJC explained what it deemed to be a “key” difference between contract and tort actions: whether the standard of performance is set by the defendants’ promises [contractual], rather than imposed by law [tort]. Bridgwood v. A.J. Wood Constr., Inc., 480 Mass. 349, 355 (2018). Even though the indemnification provision at issue incorporated a negligence standard, the SJC ruled that CHA’s liability was based on its contractual promise to indemnify, not on common law negligence.
“CHA’s duty to indemnify the university for CHA’s negligence is not one imposed by law; rather, it is a promise to which CHA freely and intelligently chose to be bound.” Slip op. at 9. This decision serves as guidance that (1) an express written indemnity provision will likely be given effect and will impose contractual duties on an indemnitor rather than common law negligence duties and (2) that with respect to indemnification claims against contractors, designers and engineers, the protection afforded by the statute of repose will not apply.
