In Trs. of Bos. Univ. v. Clough, Harbour & Assocs. LLP, 255 N.E.3d 596 (Mass. 2025), the Massachusetts Supreme Court (“Court”) 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 against a design firm based on the indemnification clause of a contract.
Clough, Harbour & Associates LLP (“CHA”) designed a new athletic field for the Plaintiff. Due to a defect in the design, the Plaintiff incurred expenses to render its new field usable. The design by CHA “failed to account for seasonal expansion in the joists of the parking structure”, which “resulted in depressions in the field;” thus, reading “it unsafe for hosting athletic events.” Id.
The contract between the parties contained an indemnification clause that stated:
“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].”
Id.
Pursuant to the indemnification provision, the Plaintiff submitted a $25,000.00 bill for its expenses to CHA. CHA declined and refused to pay.
As a result, the Plaintiff filed suit against CHA more than six (6) years after the field opened. CHA moved for summary judgment on the basis that the tort statute of repose applied and time barred the Plaintiff claim. CHA’s rationale was that the indemnification clause required it “to indemnify the [Plaintiff] for CHA’s negligence, and a negligence action is itself an action in tort.” The Massachusetts Supreme Court expressly rejected CHA’s argument.
The Court stated the plain language of the tort statute of repose “does not apply to contract actions,” and “expressly provides a limitation only for actions of tort.” Id. The Court determined that the Plaintiff’s claim was “essentially contractual” because it was for “the enforcement of a contract of indemnification.” Id. As a result, the Court held CHA must comply with its promise to the Plaintiff which it “freely and intelligently chose to be bound.” Id.
While statutes of limitation and repose continue to be great gatekeeping tools to combat stale claims from proceeding, they do not guarantee success. Design professionals should be aware of which states have such statutes and assert the defense at the onset of litigation if available. More importantly, design professionals should take special care when agreeing to contractual indemnification clauses. This case demonstrates the importance of exercising caution when agreeing to indemnity clauses in contracts.