ConstructionRisk Report (April 2026)

Inside this Issue

• A1 - Tort Statute of Repose Inapplicable to Suit against Architect based of Breach of Indemnity Clause
• A2 - Statute of Limitations Enforced to bar Condo Association Claim against Architect

Article 1

Tort Statute of Repose Inapplicable to Suit against Architect based of Breach of Indemnity Clause

See similar articles: Breach of Contract | indemnity | repose | Statute of Repose

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).

Copyright 2026, ConstructionRisk, LLC

Article 2

Statute of Limitations Enforced to bar Condo Association Claim against Architect

See similar articles: Limitations | Statute of Limitations | Time Bar

A court determined that a condominium association claim against an architect was time barred by the applicable statute of limitations where the association filed suit claiming that double-paned glass of the exterior curtain walls of their building was defectively designed and constructed.  The project was completed in 2008, and problems were first noted as early as 2014 but suit was not filed until 2023.  The Association asserted it did not determine its cause of action until 2021.  The court stated that the general rule is that when a plaintiff is placed on notice of some appreciable harm occasioned by another’s conduct, the plaintiff must make further inquiry to determine the scope of the actual harm and is charged with what it would have discovered had it made such inquiry. Applying this “discovery” rule, the court granted that defendant’s summary judgment motion.  Fifteen Twenty-One Second Ave Condo Association v. Viracon, LLC, No 2:23-cv-01999-BJR (W.D. Wash., 2025).

In 2014 the Association engaged RDH Building Services Inc to undertake an investigation into the building enclosure and curtain wall system and develop a repair plan.  The Association’s building manager maintained a spreadsheet of issues with the glass to help facilitate the expert’s effort.  In 2016 a glass panel on the 35^th floor of the building shattered and fell to the ground.  More failures were reported in 2017.  These were determined to be consistent with “tempered glass breakage due to nickel-sulfide inclusion.”

A heat dome was experience in Seattle in 2021 – resulting in temperatures exceeding 100 degrees. After the heat dome, residents of the building began complaining of unsightly dripping or running of sealant down the inside of their windows.

Subsequent analysis by experts hired by the Association has led to the opinionthat the IGUs suffer from a design defect related to the use of JS-780 Grayspecified by Quanex IG Systems and Manufactured by TruSeal Technologies, which isalleged to be unstable and results in the loss of insulating performance andincreased stress to the glass panes.

In reviewing whether the suit by the Association was time-barred, the court determined that the Association discovered or should have discovered the basis for their claim earlier than the date asserted by the Association.   The three-year clock on the litigation began to run earlier.  The examples of defects having occurred in 2016 shows events were known more than seven years prior to the litigation being filed.  The Association’s claims would, therefore, be time-barred unless than can demonstrate an exception to the statute of limitations.

This means the action accrues (or the three-year clock starts running) whenthe Association “know[s] or should with due diligence know that the cause in factwas an alleged defect.”   The court stated, “[t]he action accrues when the plaintiff knows or should know the relevant facts, whether or not the plaintiffalso knows that these facts are enough to establish a legal cause  of action.”

Diligent inquiry revealed a likely defect; salient information was available. “TheAssociation alleges that the IGUs supplied by Viracon contained latent defectsthat cause physical damage such as sealant creep and spontaneous breakage ofglass. The undisputed facts in the record show that the Association was on noticeof the harm at least as early as July 2016, even if it did not know the exactcause of the glass shattering at that time.  The Association asserts that it couldnot have known until December 6, 2021 that the shattered IGU was related to the graysealant, and even then, the full cause and scope of the problem remained unknown.”

The discovery rule does not require a plaintiff to be “absolutely certain” ofthe cause of harm, or to have “knowledge of the existence of a legal cause ofaction.”

The court determined that the record shows that the Association knew no later than 2016 that there were problems with the glass.  In addition to what the Association knew from its own experience with their windows, the City of Seattle had filed action against the glass manufacturers in 2019 alleging defects in the IGU made with gray PIB-based sealant in glass curtain walls like the curtainwall in this case.  “These public records”, the court stated, “show that within the community as well as within the industry,there existed information that a diligent inquiry could find regarding defects inIGUs related to gray PIB sealant.”

Based on the discovery rule and the Association’s failure to show an exception to the time-bar established by the statute of limitation, the court granted the defendants summary judgment.

 

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).

Copyright 2026, ConstructionRisk, LLC