255 N.E.3d 596
Mass.2025Background
- Boston University (BU) contracted Clough, Harbour & Associates LLP (CHA) in 2012 to design a synthetic turf athletic field over a parking structure, including a specifically negotiated indemnification provision for negligence.
- CHA's design was allegedly defective, causing the field to be unusable unless repaired. BU incurred over $25,000 in expenses to remedy the issue.
- BU demanded indemnification per the contract, CHA refused.
- More than six years after the field opened (August 2013), BU sued CHA for breach of the indemnification provision.
- CHA moved for summary judgment, arguing the Massachusetts tort statute of repose (G.L. c. 260, § 2B) barred the claim; the trial court agreed.
- The Supreme Judicial Court granted direct appellate review and reversed the lower court's decision.
Issues
| Issue | Plaintiff's Argument (BU) | Defendant's Argument (CHA) | Held |
|---|---|---|---|
| Does the tort statute of repose bar a contract-based indemnity claim when premised on negligence by the architect? | The indemnification claim is contractual, not a tort, and thus not subject to the statute of repose. | The claim is based on architect's negligence, thus it is a tort action subject to the statute of repose. | Statute of repose does not bar the contract-based indemnification claim. |
| Is the distinction between breach of an express contractual provision and an implied warranty relevant to repose? | Express contracts freely negotiated are not subject to tort repose limits. | Only certain contract claims, like express warranties, are excepted; not indemnification. | Agreed that express indemnity is distinct and not barred. |
| Does labeling a claim as contractual avoid repose if it is substantively tort-based? | The gist of the claim is contract enforcement, as in prior precedent. | The negligence basis converts it into a tort under the statute. | Court examines the gist and here finds it is contractual. |
| Applicability of prior decisions such as Gomes v. Pan Am. Assocs. to claims like this. | Prior case supports allowing contract-based indemnity claims post-repose period. | Prior case is distinguishable; broader indemnity language required. | Precedent supports enforceability of this type of indemnification clause. |
Key Cases Cited
- Klein v. Catalano, 386 Mass. 701 (tort statute of repose does not apply to contract actions)
- Anthony's Pier Four, Inc. v. Crandall Dry Dock Eng'rs, Inc., 396 Mass. 818 (distinguishes between express and implied warranty for repose analysis)
- Gomes v. Pan Am. Assocs., 406 Mass. 647 (enforcing a contract-based indemnification clause after statute of repose expired)
- Bridgwood v. A.J. Wood Constr., Inc., 480 Mass. 349 (repose applies to duties imposed by law, not agreed by contract)