In a ruling with significant implications for insurers and design professionals, the Massachusetts Supreme Judicial Court held on April 16, 2025, that a contractual indemnity claim brought by Boston University against its architect was not barred by the Commonwealth’s tort statute of repose, despite being filed more than six years after the university began using the facility in question.
The decision in Trustees of Boston University v. Clough, Harbour & Associates LLP clarifies the legal distinction between tort and contract-based liability, underscoring that expressly negotiated indemnity provisions are enforceable beyond the time limits imposed by G. L. c. 260, § 2B - the statute of repose that bars tort actions arising from design defects in real property after six years.
The dispute originated from a 2012 agreement in which Clough, Harbour & Associates LLP (CHA) was retained by the university to design a synthetic turf athletic field and the parking structure below it. The parties, both sophisticated entities, negotiated an express indemnification clause under which CHA agreed to indemnify the university for “any and all” expenses, including attorneys’ fees, “to the extent caused” by CHA’s negligence.
The athletic field opened on August 31, 2013. However, the university soon discovered that the design failed to accommodate the seasonal expansion of joists in the structure, resulting in field depressions that made it unsafe for use. The university incurred over $25,000 in repair costs and sought reimbursement under the indemnity clause. CHA refused to pay.
On July 2, 2020, the university filed suit in Suffolk Superior Court for breach of the indemnity provision. CHA moved for summary judgment, arguing that the tort statute of repose barred the claim. The trial judge agreed, relying in part on the Appeals Court’s unpublished 2023 decision in University of Mass. Bldg. Auth. v. Adams Plumbing & Heating, Inc., and granted CHA’s motion.
On direct appellate review, the Supreme Judicial Court reversed. Writing for a unanimous court, Justice Wendlandt stated that the university’s claim was not a tort action, but a contractual enforcement of an indemnity promise. The court reaffirmed that G. L. c. 260, § 2B, by its plain language, applies only to “actions of tort” and not to claims grounded in express contractual duties.
Citing its earlier ruling in Gomes v. Pan Am. Associates, 406 Mass. 647 (1990), the court explained that even where a contract references negligence, enforcement of an indemnity clause is still governed by contract law, provided the duty to indemnify arises from the agreement and not from legal obligations imposed by statute or common law.
“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 wrote. The indemnity obligation in this case, the court found, was one CHA “freely and intelligently chose to be bound” by, and as such, was not subject to the tort-based time limitation.
While the case did not involve the interpretation of an insurance policy, the ruling carries clear weight for insurance professionals, particularly in the underwriting of architects and engineers’ professional liability coverage. Indemnity provisions like the one at issue are frequently points of negotiation and may be excluded or limited under certain policy terms unless specifically endorsed. The decision also reinforces that insurers may face indemnity-related exposure well beyond the six-year period contemplated under the tort statute of repose.
The indemnification clause in question, notably, did not appear in the American Institute of Architects’ (AIA) Standard Form B101-2007, indicating that it was a separately negotiated addition - emphasizing the importance of careful contractual drafting and review.
The court’s April 16 ruling sends a strong signal that when parties agree to an express indemnification clause—even one that incorporates negligence standards - the obligation survives the statute of repose applicable to torts. The ruling ensures that sophisticated parties cannot use statutory time bars to evade contractually assumed duties, a point of particular relevance to insurers, risk managers, and professionals involved in large-scale design and construction projects.
