A claim for contractual indemnification—even when based on negligent design—is not barred by the state's 6-year statute of repose that applies to tort claims arising from design and construction defects. See Trustees of Boston University v. Clugh, Harbour & Assoc., LLP, 255 N.E.3d 596 (Mass. 2025).
Facts of the Case
Boston University (the "University") hired an architectural firm, Clough, Harbour & Associates, LLP (the "Architect"), to design a new athletic field. The University and the Architect specifically negotiated an indemnification clause in the Architect's contract that required the Architect to pay the University for any expenses arising from the Architect's negligent design.
After the field opened, defects in the Architect's design made the field unsafe. This resulted in the University incurring repair expenses, which the University submitted to the Architect for payment, but the Architect refused to indemnify the University.
Over 6 years after the field opened, the University sued the Architect, alleging a breach of the indemnification agreement.
The Massachusetts statute reads in part that actions for tort damages arising out of a deficiency in the design cannot be commenced "more than 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." M.G.L.A. 260 § 2B.
The Architect moved to have the suit dismissed, arguing that the statute of repose, which eliminates a cause of action in tort 6 years after the opening of an improvement to real estate, barred the University's indemnification claim. The trial court agreed, and the University appealed.
The dispute found its way to Massachusetts's highest court, the Massachusetts Supreme Judicial Court.
The Court's Analysis
The Massachusetts Supreme Judicial Court reversed the lower court and held that the statute of repose on which the Architect relied, by its plain terms, was a tort statute of repose and did not apply to contract actions, despite the University seeking indemnification for the Architect's negligence. The statute "expressly provides a limitation only for actions of tort."
The Massachusetts Supreme Judicial Court determined the University's suit against the Architect was a contract claim. It noted a "key difference between an action in tort and an action in contract is that in the latter, 'the standard of performance is set by the defendants' promises, rather than imposed by law."
The court concluded that the University's action was "essentially contractual—the enforcement of a contract of indemnification." In the contract between the University and the Architect, the Architect expressly promised to indemnify the University. The Architect's duty to indemnify the University for the Architect's negligence was not imposed by law. Rather, it was a promise that the Architect freely and intelligently chose.
The University's claim was contractual, and the tort statute of repose did not bar it.
Lessons Learned
The important takeaway for design firms is to look carefully at the claim being asserted. Simply because an entity may be seeking indemnification arising out of your firm's negligence, you must look to the essence of the claim. Like the suit filed here, the essence of the owner's claim was breach of contract, not tort.
Look closely at the statute of repose, if there is one, in the state whose law applies to your dispute. Does it apply only to torts, like Massachusetts, or does it have a broader application? In some states, even contract claims may be barred.
Last of all, be careful drafting those indemnity provisions you are agreeing to put in your contracts. Different wording may have meant a different outcome in this dispute.
Opinions expressed in Expert Commentary articles are those of the author and are not necessarily held by the author's employer or IRMI. Expert Commentary articles and other IRMI Online content do not purport to provide legal, accounting, or other professional advice or opinion. If such advice is needed, consult with your attorney, accountant, or other qualified adviser.
A claim for contractual indemnification—even when based on negligent design—is not barred by the state's 6-year statute of repose that applies to tort claims arising from design and construction defects. See Trustees of Boston University v. Clugh, Harbour & Assoc., LLP, 255 N.E.3d 596 (Mass. 2025).
Facts of the Case
Boston University (the "University") hired an architectural firm, Clough, Harbour & Associates, LLP (the "Architect"), to design a new athletic field. The University and the Architect specifically negotiated an indemnification clause in the Architect's contract that required the Architect to pay the University for any expenses arising from the Architect's negligent design.
After the field opened, defects in the Architect's design made the field unsafe. This resulted in the University incurring repair expenses, which the University submitted to the Architect for payment, but the Architect refused to indemnify the University.
Over 6 years after the field opened, the University sued the Architect, alleging a breach of the indemnification agreement.
The Massachusetts statute reads in part that actions for tort damages arising out of a deficiency in the design cannot be commenced "more than 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." M.G.L.A. 260 § 2B.
The Architect moved to have the suit dismissed, arguing that the statute of repose, which eliminates a cause of action in tort 6 years after the opening of an improvement to real estate, barred the University's indemnification claim. The trial court agreed, and the University appealed.
The dispute found its way to Massachusetts's highest court, the Massachusetts Supreme Judicial Court.
The Court's Analysis
The Massachusetts Supreme Judicial Court reversed the lower court and held that the statute of repose on which the Architect relied, by its plain terms, was a tort statute of repose and did not apply to contract actions, despite the University seeking indemnification for the Architect's negligence. The statute "expressly provides a limitation only for actions of tort."
The Massachusetts Supreme Judicial Court determined the University's suit against the Architect was a contract claim. It noted a "key difference between an action in tort and an action in contract is that in the latter, 'the standard of performance is set by the defendants' promises, rather than imposed by law."
The court concluded that the University's action was "essentially contractual—the enforcement of a contract of indemnification." In the contract between the University and the Architect, the Architect expressly promised to indemnify the University. The Architect's duty to indemnify the University for the Architect's negligence was not imposed by law. Rather, it was a promise that the Architect freely and intelligently chose.
The University's claim was contractual, and the tort statute of repose did not bar it.
Lessons Learned
The important takeaway for design firms is to look carefully at the claim being asserted. Simply because an entity may be seeking indemnification arising out of your firm's negligence, you must look to the essence of the claim. Like the suit filed here, the essence of the owner's claim was breach of contract, not tort.
Look closely at the statute of repose, if there is one, in the state whose law applies to your dispute. Does it apply only to torts, like Massachusetts, or does it have a broader application? In some states, even contract claims may be barred.
Last of all, be careful drafting those indemnity provisions you are agreeing to put in your contracts. Different wording may have meant a different outcome in this dispute.
Opinions expressed in Expert Commentary articles are those of the author and are not necessarily held by the author's employer or IRMI. Expert Commentary articles and other IRMI Online content do not purport to provide legal, accounting, or other professional advice or opinion. If such advice is needed, consult with your attorney, accountant, or other qualified adviser.