In a decision by the Massachusetts Supreme Judicial Court (SJC), it was held that the tort statute of repose that sets a time bar for filing tort actions for damages arising out of design defects was not applicable to a project owner claim against a design firm based on the indemnification clause of the contract. The court held this was a breach of contract action not subject to the statute of repose that applies only to tort claims. This case demonstrates the importance of exercising caution when agreeing to indemnity clauses in contracts. Trustees of Boston University v. Clough, Harbour & Associates LLP, 495 Mass. 682 (2025).
The defendant, Clough, Harbour & Associates LLP (CHA or architect), designed a new athletic field for theUniversity. The contract contained an indemnification clause that; “To the fullest extent permitted by law, [CHA] shallindemnify … [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].” Due to a defect in the design, the university incurred expenses to render its new field usable. Pursuant to the indemnification provision, the university submittedthe bill for its expenses to the designer; The designer declined to pay and the university filed suit against it more than six (6) years after the field opened for use.
In the trial court, CHA moved for summary judgment which the court grated. The designer argued that the tort statuteof repose operates to bar the university’s indemnification claim, which indisputably was filed more than six years afterthe 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’s negligence, and a negligence action is itself an action in tort.
By the statute’s plain terms, the tort statute of repose “does not apply to contract actions.” The court stated,
“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 compared breach of warranty claims that are not precluded by the tort statute of repose. “Thus, we have determined that the tort statute of repose applies to a claim for breach of an implied warranty, where the duty is imposed by law and “the elements for breach of implied warranty and for negligence claims are the same,” (citation omitted, but does not apply to a claim for breach of an express warranty where the duty arises from a contracting party’s express agreement to guarantee a particular result.”
Later in the decision the court further explained that it had considered a situation it deemed similar to this in previous case where a mall owner sued an architect to enforce an indemnification clause long after the tort statute of repose had passed. In that case a mall patron sued the owner for negligence based on the mall’s design. The court looked at the indemnity provision in that case and concluded that it was grounded in the contractual indemnification provision even though the underling mall patron’s claim was for negligence. The court there concluded that “[t]he parties freely andintelligently entered into a contract of indemnification. They should be held to it.”
“Similarly, here, the gist of the university’s action is “essentially contractual—theenforcement of a contract of indemnification.” Id. In section 10.10 of the parties’ contract, CHAexpressly promised to indemnify the university if it suffered any expenses due to CHA’s negligence.(citation omitted). CHA’s duty to indemnify the university for CHA’s negligence is not one imposedby law; rather, it is a promise to which CHA freely and intelligently chose to be bound.”
Finally, the court explained that “To prevail on its [indemnification] claim, the university must shown the existence of a valid and enforceable indemnification clause, the occurrence of an event triggering the duty to indemnify, the provisions of adequate notice to the indemnitor, and the failure of the indemnitor to fulfill its obligation as specified in the indemnification clause.” Having found the university’s claim to be contractual in nature, the court held that the tort statute of repose did not bar this claim.
Comment: I understand the concerns raised by some commentators about this court decision. I, however, believe contracts between sophisticated parties should be enforced by courts as written, and in this case, I think the court has explained well its reasoning for enforcing the indemnity clause.
Contractual indemnity obligations are created by contract and create cause of action for the Indemnified party that is separate from a tort cause of action that party might be able to bring against the designer. This is one reason that I believe parties should be warry of indemnity clauses in their contracts.
Another concern with the clause in this case is that it created a cause of action for the owner to make first party damages claims against the designer even if no third-party claim for damages had been made against the owner. When our consulting firm reviews contracts, we like to revise the indemnity wording to clearly state that the indemnity is only for damages resulting from third party claims against the indemnitee. Some states read indemnity clauses to be limited in that manner anyway. But courts in other states will allow the indemnity clause to be used to recover first party damages unless expressly clarified to be only for damages resulting from third party claims.
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. 27, No. 5 (July 2025).
Copyright 2025, ConstructionRisk, LLC
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