A design firm agreed to design a new athletic field for the plaintiff, Trustees of Boston University (university). It promised to indemnify the university for “any and all” expenses incurred by the university as a result of the architect’s “negligen[t]” design. Defendant refused to indemnify the University for damages resulting from its design. University filed suit over six years after the project was complete. Based on the six-year tort statute of repose, the trial court dismissed the case. This was reversed by the state Supreme Court on appeal because the court held the tort statute is not applicable to failure to honor the indemnity obligation which it deemed to be breach of contract matter. Trustees of Boston University v. Clough, Harbour & Associates, 495 Mass. 682 (2025).
The indemnity clause of the contract provided: “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].
“CHA’s design failed to account for seasonal expansion in the joists of the parking structure; this resulted in depressions in the field that rendered itunsafe for hosting athletic events.”
The designer moved for summary judgment, arguing that the tort statute of repose operated to bar the university’s indemnification claim, which indisputably was filed more than six years after the opening of the athletic field, because, although the claim ostensibly is based in the parties’ contract, the contractual provision requires CHA to indemnify the university for CHA’snegligence, and a negligence action is itself an action in tort.
The statute or repose provides the following:
“Action[s] of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property . . . shall be commenced only within three years next after the cause of action accrues; provided, however, that in no event shall such actions 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”
The supreme court concluded that “By the statute’s plain terms, the tort statute of repose “does not apply to contract actions,” and “expressly provides a limitation only for actions of tort.”
“Here, the gist of the university’s action is “essentially contractual -– the enforcement of a contract of indemnification.” In section 10.10 of the parties’ contract,CHA expressly promised to indemnify the university if it suffered any expenses due to CHA’s negligence. Indeed, while the parties chose to incorporate the negligence standard of careinto the indemnification provision, the elements of the university’s contractual indemnification claim differ from a claim for negligence. To prevail on its claim, the university must show the existence of a valid and enforceableindemnification clause, the occurrence of an event triggering the duty to indemnify, the provision of adequate notice to the indemnitor, and the failure of the indemnitor to fulfill its obligation as specified in the indemnification clause. By contrast, a negligence claim requires a plaintiff to show duty, breach, causation, and damages.”
Based on this analysis, the court concluded that the university’s claim is contractual in nature, and the tort statute of repose does not bar it.
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk Report, Vol. 28, No. 3 (April 2026).
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